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INTESTATE  SUCCESSION 


STATE    OF   NEW  YORK. 


SHOWING   THE  RIGHTS  OF   THE  LIVING   TO  THE 

PROPERTY    OF    DECEASED    RELATIVES 

UNDISPOSED  OF  BY  VALID  WILL. 


By  DANIEL  S.  REMSEN. 

OF  THE  NEW  YORK  BAR. 


FOURTH     EDITION 


NEW  YORK: 
BAKER,  VOORHIS  &  COMPANY. 

1904. 


Copyright,  1885, 
By  Daniel  S.  Remsen. 


Copyright,   1890, 
By  Daniel  S.  Remsen. 


Copyright,   1896, 
By  Daniel  S.  Remsen. 


Copyright,   1904. 
By  Daniel  S.  Remsen. 


T 


J.    B.    LYON    COMPANY 

PRINTERS    AND     BINDERS 

ALBANY,    N.    Y. 


XOTE  TO  FOURTH  EDITION. 


In  the  fourtli  edition  it  is  intended  to  present  the 
law  of  Intestate  Succession  as  it  is  found  in  the 
statutes  and  the  judicial  decisions  of  this  State  at  the 
present  time,  and  to  this  end  such  changes  in^  and  ad- 
ditions to,  the  work  have  been  made  as  were  necessary. 

D.  S.  R. 

69  Wall  St.,  New  York,  Jan.,  1904. 


776903 


PREFACE  TO  FIRST  EDITIOis^ 


The  object  of  this  volume  is  to  present,  in  a  form 
convenient  for  reference,  a  subject  which  it  is  imprac- 
ticable for  lawyers  to  carry  wholly  in  mind,  and  yet 
of  sufficient  importance  to  require  frequent  examina- 
tion, especially  by  those  engaged  to  any  extent  with 
the  estates  of  deceased  persons.  The  material  form- 
ing the  basis  of  this  work  having  been  collected  by 
the  writer  while  engaged  upon  the  subject  of  intes- 
tate succession  and  kindred  branches  of  the  law,  and 
having  also  been  found  useful  by  him  in  drawing  or 
construing  wills,  the  work  has  been  thought  worth 
the  labor  of  arranging  in  its  present  shape  for  pub- 
lication. 

It  will  be  noticed  that  the  plan  of  naming  particu- 
lar relatives,  and  then  stating  their  rights  to  take  or 
share  in  the  property  of  deceased  persons,  under 
various  family  circumstances,  has  been  pursued 
throughout.  This  arrangement  will  be  found  of  prac- 
tical service  in  readily  ascertaining  the  rights  of 
claimants  and  inquirers,  and  in  showing  what  be- 
comes of  property  not  effectually  disposed  of  by  will. 

It  is  believed  that  the  Chart  of  Consanguinity, 
Table  of  Descent,  and  Table  of  Relative  Terms,  will 
be  found  useful  in  determining  the  relationship  of 
claimants  and  inquirers. 

For  greater  convenience,  the  Statutes  of  Descent 
and  Distribution  are  appended. 

DAXIEL  S.  REMSEN. 

C9  Wall  St.,  Xew  York,  Dec,  1885. 
[4] 


CONTENTS. 


CHAPTER  I. 

OF  THE  PERSONS  ENTITLED  TO  TAKE. 


PAGE. 

1.  What   law  governs,  '     .          .          .          .          .          .        n 

2.  Relatives  generally, 

10 

:i.  The  number  of  relatives, 

11 

4.  Relative  terms,       .... 

13 

5.  Post-testamentary  children,     . 

14 

(j.  Posthumous  relatives,     . 

15 

7.  Relatives  of  the  half-blood,      . 

16 

8.  Illegitimate  children, 

16 

9.  Relatives  of  illegitimate  intestates. 

17 

10.  Adopted   children, 

18 

11.  Aliens,           ..... 

18 

CHAPTER  II. 

OF  THE   PROPERTY  TO   BE   DIVIDED. 

§   1.  Devisable  property  generally,   . 

2.  Did  the  deceased  make  a  will  ? 

3.  Has  the  will  been  revoked? 

4.  Does  the  will  fail  to  take  effect? 

5.  Advancements, 
0.  "  On  the  part  of  "  father  or  mother, 

7.  "  From  a  deceased  husband  or  wife," 

8.  Succession  tax,        .... 


20 
21 
23 
24 
25 
28 
28 
29 


CHAPTER  III. 

OF  THE  RIGHTS  OF  WIDOW  AND  HUSBAND. 

§   1.  Widow  takes  Real  Estate,        .  .  .  .  .30 

2.  Widow  takes  Personal    Estate,  .  .  .  .32 

3.  Husband  takes  Real    Estate, 35 

4.  Husband  takes  Personal  Estate,        .  .  .  .36 

[5] 


COXTE-XTS. 


CHAPTER  IV. 

OF  THE  RIGHTS  OF  DESCENDANTS. 

1.  Children  take  Real  Estate, 

2.  Cliildrcn  take  Personal  Estate, 

3.  Grandeliildren  take  Real  Estate, 

4.  Grandchildren  take  Personal  Estate, 

5.  Great-grandchildren  take  Real   Estate, 

6.  Great-grandchildren  take  Personal   Estate, 

7.  Great-great-grandchildren  take  Real  Estate, 

8.  Great-great-grandchildren  take  Personal  Estate, 


PAGE. 

38 
39 
39 
40 
41 
43 
45 
47 


CHAPTER  V. 

OF  THE  RIGHTS  OF  ANCESTORS. 

1.  Father  takes  Real  Estate, 

2.  Father  takes  Personal  Estate, 

3.  Mother  takes  Real  Estate, 

4.  Mother  takes  Personal   Estate, 

5.  Grandparents  take  Personal  Estate  only, 
G.  Great-grandparents  take  Personal  Estate  only, 
7.  Great-great-grandparents  take  Personal  Estate  only, 


51 
52 
52 
53 
54 
55 
56 


CHAPTER  YI. 

OF   THE    RIGHTS    OF    BROTHERS    AND    SISTERS    AND 
THEIR  DESCENDANTS. 


§   1.  Brothers  and  sisters  take  Real  Estate, 

2.  Brothers  and  sisters  take  Personal  Estate, 

3.  Nephews  and  nieces  take  Real  Estate, 

4.  Nephews  and  nieces  take  Personal  Estate, 

5.  Grandnephews  and  nieces  take  Real  Estate, 
G.  Grandnephews  and  nieces  take  Personal  Estate, 

7.  Great-grandnephews  and  nieces  take  Real  Estate, 

8.  Great-grandnephews  and  nieces  take  Personal  Estate, 


57 
58 
60 
62 
66 
68 
69 
72 


CONTENTS. 


CHAPTER  VII. 

OF  THE  RIGHTS  OF  UNCLES  AND  AUNTS  AND  THEIR 
DESCENDANTS. 

PAGE. 

74 
76 
77 
81 
82 
88 
88 
95 


1.  Uncles  and  aunts  take  Real  Estate,  . 

2.  Uncles  and  annts  take  Personal  Estate, 

3.  Cousins  take  Real  Estate, 

4.  Cousins  take  Personal  Estate, 

5.  Children  of  eounsins  take  Real  Estate, 

6.  Children  of  cousins  take  Personal  Estate, 

7.  Grandchildren  of  cousins  take  Real  Estate, 

8.  Grandchildren  of  cousins  take  Personal  Estate, 


CHAPTER  VIII. 

OF  THE  RIGHTS  OF  GREAT-UNCLES  AND  AUNTS  AND 
THEIR  DESCENDANTS. 

§  1.  Great-uncles  and  aunts  take  Real  Estate,  .         ,.  .97 

2.  Great-uncles  and  aunts  take  Personal  Estate,     .  .      99 

3.  Children  of  great-uncles  and  aunts  take  Real  Estate,  100 

4.  Children    of   great-uncles    and   aunts    take    Personal 

Estate, 101 

5.  Second  cousins  take  Real  Estate,       ....    102 

6.  Second  cousins  take  Personal  Estate,         .  .  .    103 

7.  Children  of  second  cousins  take  Real  Estate,       .  .105 

8.  Children  of  second  cousins  take  Personal  Estate,         .   105 


CHAPTER  IX. 

OF     THE     RIGHTS     OF     GREAT-GREAT-UNCLES     AND 
AUNTS  AND  THEIR  DESCENDANTS. 

§   1.  Great-great-uneles  and  aunts  take  Real  Estate,  .  .    108 

2.  Great-great-uncles  and  aunts  take  Personal  Estate,     .    109 

3.  Children  of  great-great-uncles  and  aunts  take  Real 

Estate, 110 


CONTENTS. 

PAGE. 

4.  Children    of  great-great-uncles   and   aunts  take   Per- 

sonal  Estate,  .  .110 

5.  Grandchildren   of  great-great-uncles   and   aunts   take 

Real   Estate, 112 

G.  Grandchildren   of  great-great-uneles   and   aunts   take 

Personal    Estate,  .  .  .112 

7.  Third  cousins  take  Real  Estate,        .  .  .  .114 

8.  Third  cousins  take  Personal  Estate,  .  .  .115 


CHAPTEE  X. 


OF  THE  POSSESSION  AND  ENJOYMENT  OF  THE  PROP- 
ERTY TAKEN. 


1.  Real  Estate, 

2.  Possession  and  inventory  of  Personal  Estate, 

3.  Payment  for  support  and  education, 

4.  Payment  after  one  year, 

5.  Payment  after  accounting, 

6.  Recovery  by  action,         .... 


118 
118 
120 
121 
122 
123 


APPEN^DIX. 


A.  Statute  of  Descent, 

B.  Statute  of  Distribution, 


125 
134 


INTESTATE   SUCCESSION 

m  NEW  YORK. 


CHAPTER  I. 

OF  THE  PERSONS  ENTITLED  TO  TAKE. 

§   1.  What  law  governs. 

2.  Relatives  generally. 

3.  The  number  of  relatives. 

4.  Relative  terms. 

5.  Post-testamentary  children. 

6.  Posthumous  relatives. 

7.  Relatives  of  the  half-blood. 

8.  Illegitimate  children. 

9.  Relatives  of  illegitimate  intestates. 

10.  Adopted  children. 

11.  Aliens. 

§  1.  What  law  governs. —  Where  a  deceased  person 
leaves  property  to  be  disposed  of  by  the  law  regulating 
intestate  estates,  the  succession  depends  on  the  char- 
acter of  the  property,  its  location,  and  the  domicile  of 
the  deceased.  The  intestate  succession  to  real  estate 
situated  within  this  State  is  regulated  by  the  laws  of 
New  York.^    In  the  case  of  personal  estate  the  succes- 

IR.  P.  Law,  §§  280-206.  Concerning  the  effect  of  the  law 
of  another  State  touching  the  status  of  a  claimant  as  to  le- 

[9] 


10  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

sion  depends  upon  the  law  of  the  domicile  of  the  de- 
ceased.^ Hence,  the  following  pages  are  applicable  to 
real  estate  situated  in  the  State  of  JSTew  York,  and  the 
personal  estates  of  persons  there  domiciled. 

§  2.  Relatives  generally. —  The  right  of  living  per- 
sons to  take  property  of  a  person  dying  intestate  de- 
pends on  their  relationship  to  the  deceased.  These  re- 
lationships are  of  three  kinds:  first,  those  by  affinity 
or  marriage ;  second,  those  by  consanguinity  or  blood, 
and  third,  those  by  lawful  adoption.  The  only  rela- 
tives of  the  first  class  who  are  entitled  to  take  under 
the  law  of  intestate  succession  are  husband  and  wife.^ 
All  other  relatives  must  found  their  claims  to  prop- 
erty on  relationship  by  blood,  or  on  the  statute  relat- 
ing to  the  adoption  of  children.^ 

Lest  there  should  be  any  confusion  of  terms,  all 
relationships  will  be  viewed  from  the  position  of  the 
deceased,  and  not  from  the  standpoint  of  the  claimant 
or  inquirer.  Thus  we  will  speak  of  a  child,  nephew, 
parent,  or  other  relative  of  the  deceased.     By  re- 

gitimacy,  see  Miller  v.  Miller,  91  N.  Y.  315;  rev'g  18  Hun, 
507.     As  to  civil  death,  see  Avery  v.  Everett,  110  N.  Y.  317. 

2  Public  Administrator  v.  Hughes,  1  Bradf.  125 ;  Bloomer  v. 
Bloomer,  2  Id.  339 ;  Graham  v.  Public  Administrator,  4  Id. 
127;  ilercure's  Estate,  1  Tuck.  288;  Minor  v.  Jones,  2  Redf. 
289. 

3  Redf.  Surr.  Pr.  3d  ed.  609. 

4  See  §  10  of  this  chapter. 


V 


I 


OF    THE    PEKSONS    ENTITLED    TO    TAKE.  11 

ferring  to  the  Chart  of  Consanguinity  here  given  it 
may  be  seen  that  persons  in  the  same  generation  with 
the  deceased  bear  to  the  deceased  the  same  relation- 
ship that  the  deceased  bears  to  them  —  as,  for  ex- 
ample, brother  or  sister  to  brother  or  sister,  cousin 
to  cousin,  and  the  like.  In  other  generations  relation- 
ships are  not  reciprocal,  and  different  terms  are  neces- 
sarily employed,  as  parent  and  child,  uncle  and 
nephew,  and  the  like. 

The  accompanying  chart  affords  a  comprehensive 
view  of  all  possible  relationships  within  the  eighth 
degree^  of  consanguinity.  The  horizontal  lines  show 
the  generations.  The  numerals  and  perpendicular 
lines  indicate  the  degree  of  consanguinity  to  the  de- 
ceased. The  relatives  mentioned  on  the  left  of  the 
heavy  broken  line  are  lineals.  Those  mentioned  on 
the  right  of  the  same  line  are  collaterals.  The 
diagonal  columns  descending  to  the  right  indicate 
the  collateral  relatives,  who  are  descendants  of  the 
ancestor  named  at  the  head  of  each  column  re- 
spectively. 

§  3.  The  number  of  relatives — As  will  be  seen  by 
the  following  Table  of  Descent,  the  number  of  an- 
cestors or  relatives  within  any  given  degree  in  the 
ascending  line,  who  must  have  existed,  cannot  exceed 

s  According  to  the  rules  of  the  civil  law,  4  Burns'  Eccl.  Law, 
30n. 


12  INTESTATE    SUCCESSIOBr    IX    XEW    YOIIK. 

a  fixed  mimber,  easily  ascertained  by  geometrical 
progression :  of  parents,  two ;  grandparents,  four ; 
great-grandparents,  eight;  great-great-grandparents, 
sixteen,  etc.  The  number  of  ancestors,  however,  may 
have  been  lessened  by  intermarriage,  whereby  certain 
ancestors  may  have  become  common  to  both  the 
paternal  and  maternal  lines.  For  example,  if  the 
parents  of  the  deceased  were  cousins,  the  deceased 
could  have  only  six  instead  of  eight  great-grand- 
parents, twelve  instead  of  sixteen  great-great-grand- 
parents, etc. 

Tt  should  be  remembered  that  each  ancestor  is  a 
source  from  which  collateral  relations  may  have  de- 
scended. In  cases  of  succession,  where  collaterals 
are  admitted,  the  tracing  of  collateral  descendants 
from  these  sources  becomes  very  important,  and  no 
source  can  be  neglected  without  rendering  the  list  of 
relatives  obtained  subject  to  error. 

The  task  of  tracing  out  collateral  relationships 
may  be  increased  by  a  second  or  other  marriage  of 
an  ancestor  with  a  person  whose  blood  does  not  flow  in 
the  veins  of  the  deceased,  and  thus  a  set  of  collateral 
relatives  of  the  half-blood  may  be  found. 

The  number  of  descendants  or  collateral  kindred  of 
any  particular  degree  or  designation  is  necessarily 
indefinite,  and  ascertainable  only  by  inquiry.  The 
necessity  of  a  rigid  inquiry  in  such  cases,  lest  any 
should  be  omitted,  cannot  be  over-estimated. 


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OF    THE    PERSONS    ENTITLED    TO    TAKE.  lo 

§  4.  Relative  terms. —  The  table  of  relative  terms 
hereafter  given  is  designed  to  aid  in  ascertaining  the 
exact  relationship  of  claimants  or  inquirers  to  a  de- 
ceased kinsman  where  it  is  not  already  known.  It 
will  be  noticed  that  the  expression  of  each  of  the 
terms  given  implies  the  one  written  opposite.  Where 
the  relationship  of  the  deceased  to  the  claimant  or 
inquirer  is  kno^vn,  let  such  relationship  be  found  in 
one  column,  and  the  relationship  of  the  claimant  or 
inquirer  to  the  deceased  will  be  found  directly  oppo- 
site. In  like  manner  relationships  may  be  traced  from 
known  ancestorial  relationships.  Thus  this  table  will 
be  found  of  sen'ice  in  connection  with  the  preceding 
diagrams. 

Table  of  Relative  Terms. 

Matrimonial. 
Husband.  Wife  or  widow. 

Lineal. 
Parent.  Child. 

Grandparent.  Grandchild. 

Great-grandparent.  Great-grandchild. 

Great-great-grandparent.  Great-great-grandchild. 

Etc. 

Collateral. 

Brother  or  sister.  Brother  or  sister. 

Uncle  or  aunt.  Nephew  or  niece. 


14 


1>  TESTATE    SUCCESSION    IN    NEW    YOKK. 


Great-uncle  or  aunt  [a  brother 
or  sister  of  a  grandparent]. 

Great-great-uncle  or  aunt  [a    ) 
brother  or  sister  of  a  great- 
grandparent],  j 

Etc. 
Cousin. 

Child  of  a  great-uncle  or  aunt 
[a  cousin  of  a  parent]. 


Child  of  a  great-great-uncle 
or  aunt  [a  cousin  of  a 
grandparent] . 


Etc. 


Second  cousin. 

Grandchild  of  a  great- 
great-uncle  or  aunt 
[a  second  cousin  of 
a  parent]. 

Third  cousin. 


Etc. 
Etc. 


(  Grandnephew 
1        or  niece. 
Great-grand- 
nephew  or 
(       niece. 

Cousin. 
Child  of  a  cousin 
[a  cousin  once 
removed] . 
Grandchild   of  a 
cousin  [a  cousin 
twice  removed] . 

Second  cousin. 
Child  of  a  second 
cousin     [a    sec- 
ond cousin  once 
removed] . 

Third  cousin. 


§  5.  Post-testamentary  children — Where  a  child 
of  a  testator  has  been  bom  after  the  making  of  a 
will,^  either  before  or  after  the  testator's  death,  and 


6  As  to  the  effect  of  adopting  a  child,  see  Adopted  Children, 
p.  18. 


OF    THE    PERSONS    ENTITLED    TO    TAKE.  15 

survives  the  testator,  such  child,  if  unprovided  for 
by  any  settlement,  and  neither  provided  for  nor  in 
any  way  mentioned  in  such  will,  succeeds  to  the  same 
portion  of  such  parent's  real  and  personal  estate  as 
he  would  have  taken  if  such  parent  had  died  intes- 
tateJ  And  the  devisees  and  legatees  under  the  will 
are  obliged  to  contribute  ratably  to  that  end.® 

§  6.  Posthumous  relatives. —  Relatives  of  an  intes- 
tate, begotten  before  his  death,  but  bom  thereafter, 
take  real  and  personal  estate  in  the  same  cases  and 

7R.  S.  65,  §  49,  as  am'd  by  L.  1869,  ch.  22:  Smith  r. 
Robertson,  24  Hun,  210,  aff'd  in  89  N.  Y.  555.  Prior  to  the 
amendment  of  1869  this  provision  did  not  relate  to  a  will  of  a 
married  woman.  Cotheal  v.  Cotheal,  40  N.  Y.  405,  overruling 
Plummer  v.  Murray,  51  Barb.  201.  As  to  illegitimate  child 
taking  from  mother  in  such  case  mentioned,  but  not  decided 
in  Matter  of  Bunce,  6  Dem.  278.  For  the  rules  for  ascertain- 
ing the  share  of  a  post-testamentary  child  and  assessing  con- 
tributions from  devisees  and  legatees  to  make  up  such  share, 
see  Mitchell  v.  Blaine,  5  Paige,  588;  Sanford  v.  Sanford,  61 
Barb.  296:  McCormack  v.  McCormaek,  50  How.  Pr.  196;  San- 
ford r.  Sanford,  4  Hun,  753.  It  seems  that  gifts  causa  mortis 
should  contribute.  Bloomer  v.  Bloomer,  2  Bradf.  339;  House 
r.  Grant,  4  Lans.  296.  Assessment  of  contributions  to  pay 
debts  should  bear  equally  on  devisees  and  legatees  as  on  the 
post-testamentary  child's  share.  Rockwell  v.  Geery,  4  Hun, 
606;  s.  c,  6  Supm.  Ct.  (T.  &  C.)   687. 

8  2  R.  S.  65,  §  49,  as  am'd  by  L.  1869,  ch.  22.  See  also 
cases  above  cited. 


16  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

in  tlio  same  manner  as  if  they  had  been  born  in  the 
lifetime  of  the  intestate  and  had  survived  him.® 

§  7.  Relatives  of  the  half-blood. —  Kelatives  of  the 
half-blood  take  real  and  personal  estate  equally  with 
those  of  the  whole-blood  in  the  same  degree/*'  except 
where  real  estate  came  to  the  intestate  by  descent, 
devise  or  gift  immediately  and  not  mediately  from 
some  one  of  the  intestate's  ancestors. ^^  In  that  event 
all  those  who  are  not  of  the  blood  of  such  ancestor  are 
excluded  from  the  inheritance.^^ 

§  8.  Illegitimate  children. —  In  default  of  lawful 
issue  illegitimate  children  take  real  and  personal 
property  from  their  mother  as  if  legitimate.'^^ 

9R.  P.  Law,  §  292;  Code,  §  2732,  subd.  14;  Mason  v.  Jones, 
2  Barb.  229,  251;  Drischler  i\  Van  Den  Henden,  49  Super.  Ct. 
(J.  &  S.)  508. 

10  R.  P.  Law,  §  290;  Code,  §  2732,  subd.  13;  Champlin  r. 
Baldwin,  1  Paige,  562;  Hallett  v.  Hare,  5  Paige,  316;  Brown 
r.  Burlingham,  5  Sandf.  418;  Beebe  v.  Griffing,  14  N.  Y.  235; 
Conkling  v.  Brown,  8  Abb.  Pr.  N,  S.  345 ;  s.  c,  57  Barb.  265 ; 
Valentine  v.  Wetherill,  31  Barb.  655;  and  Adams  V.  Smith,  20 
Abb.  N.  C.  60. 

11  The  word  "ancestor,"  as  used  in  the  statute,  refers  only 
to  the  immediate  ancestor  in  estate,  and  not  in  blood.  Wheeler 
V.  Clutterbuck,  52  N.  Y.  67;  Valentine  r.  Wetherill,  31  Barb. 
055:  Emanuel  r.  Ennis,  48  Super.  Ct.  (J.  &  S.)  430;  Dargin 
v.  Wells,  N.  Y.  Daily  Reg.,  Aug.  9,  1883 ;  Adams  v.  Smith,  20 
Abb.  N.  C.  60. 

12  R.  P.  LaAV.  §  290. 

13  R.  P.  Law,  §  289;  Code  Civ.  Pro.,  §  2732,  as  am'd  L. 
1897,  eh.  37;   Ferrie  v.  Public  Administrator,  3  Bradf.  249. 


OF    THE    PERSOXS    ENTITLED    TO    TAKE.  17 

§  9.  Relatives  of  illegitimate  intestates. —  In  case 
of  the  intestacy  of  an  illegitimate,  the  widow  and 
descendants  have  as  many  rights  as  where  the  intes- 
tate is  legitimated^  In  the  absence  of  descendants 
the  mother  takes  all  the  real  estate  if  she  be  living, 
and  if  she  be  dead  it  descends  to  the  relatives  of  the 
intestate  on  the  part  of  the  mother,  as  if  the  intestate 
had  been  legitimate,^^  but  subject  to  dower  if  the 
widow  be  living.  ^^  If  the  illegitimate  intestate  leaves 
no  widow  or  descendant  the  mother  takes  all  personal 
estate."  But  the  division  of  the  personal  estate  in 
case  the  widow  and  mother  of  an  illegitimate  intestate 
both  survive,  does  not  appear  to  have  been  contem- 
plated in  framing  the  statute.^®     If  the  mother  be 

For  the  status  of  legitimacy  as  affected  by  the  laws  of  the 
claimant's  domicile,  see  Miller  v.  Miller,  91  N.  Y.  315,  rev'g 
18  Hun,  507,  and  overruling  Bollerman  r.  Blake,  24  Hun,  187. 
An  illegitimate  grandchild  cannot  inherit  from  a  maternal 
grandfather,  the  mother  of  the  illegitimate  being  dead.  Mat- 
ter of  Mericlo,  63  How.  Pr.  62.  The  marriage  of  parents  ren- 
ders legitimate  all  children  born  out  of  wedlock.  Domestic 
Rel.  L.  §  18. 

14  R.  P.  Law,  §  281 ;  Code,  §  2732. 

ISR.  P.  Law,  §  289.  But  if  the  mother  be  living  and  ex- 
cluded by  reason  of  alienage  a  brother  of  the  deceased  born  in 
wedlock  of  the  same  parents  cannot  inherit.  St.  John  v, 
Northrup,  23  Barb.  32. 

10  R.  P.  Law,  §  280. 

17  Code,  §  2732,  subd.  9. 

18  lb. 


18  1^"TESTATE    SUCCESSION    IN    NEW    YOKK. 

dead  the  relatives  of  the  deceased  on  the  part  of  the 
mother  take^^  personal  estate  as  if  the  intestate  had 
been  legitimate,  and  to  the  exclusion  of  relatives  on 
the  part  of  the  father. 

§  10.  Adopted  children. —  By  the  statute  regulating 
the  adoption  of  children^'^  it  is  provided  that  a  "  child 
takes  the  name  of  the  foster  parent.  His  rights  of  in- 
heritance and  succession  from  his  natural  parents  re- 
main unaffected  bv  such  adoption.  The  foster  parent 
or  parents  and  the  minor  sustain  toward  each  other 
the  legal  relation  of  parent  and  child,  and  have  all 
the  rights,  and  are  subject  to  all  the  duties  of  that 
relation,  including  the  right  of  inheritance  from  each 
other,  except  as  the  same  is  affected  by  the  provisions 
in  this  section  in  relation  to  adoption  by  a  stepfather 
or  stepmother,  and  such  right  of  inheritance  extends 
to  the  heirs  and  next  of  kin  of  the  minor,  and  such 
heirs  and  next  of  kin  shall  be  the  same  as  if  he  were 
the  legitimate  child  of  the  person  adopting,  but  as 

i!>  Code,  §  2732.  subd.  9.  Public  Administrator  v.  Hughes.  1 
Bradf.  12.5.     See  also  Peters  v.  Public  Administrator,  Id.  200. 

20  Domestic  Eelations  Law,  §  64,  as  am'd  L.  1807,  ch.  408. 
The  original  act  relating  to  adoption  was  L.  1873,  ch.  830.  §  10. 
The  feature  of  inheritance  was  inserted  by  an  amendment, 
L.  1887,  ch.  703,  which  took  effect  June  25,  1887.  Adoption 
under  the  statute  prior  to  the  amendment  gives  right  to  intes- 
tate succession.  Simons  v.  Burrell,  8  Misc.  404;  Dodin  r. 
Dodin,  16  App.  Div.  42.  See  note  on  adoption  under  statute, 
29  Abb.  X.  C.  49. 


OF    THE    PERSO^■S    ENTITLED    TO    TAKE.  11) 

respects  the  passing  and  limitation  over  of  real  or 
personal  property  dependent  under  the  provisions  of 
any  instrnment  on  the  foster  parent  dying  without 
heirs,  the  minor  is  not  deemed  the  child  of  the  foster 
parent  so  as  to  defeat  the  rights  of  remaindermen." 

§  11,  Aliens. — At  common  law  aliens  cannot  ac- 
(juire  real  estate  by  descent.^^  The  statutes  of  this 
State  have,  however,  largely  removed  this  common- 
law  disability. ^^ 

21  2  Kent  Comm.  53,  and  cases  cited. 

22  R.  P.  Law,  §§  4-7. 


CHAPTER  II. 

OF  THE  PROPERTY  TO  BE  DIVIDED. 

§   1.  Devisable  property  generally^ 

2.  Did  the  deceased  make  a  will? 

3.  Has  the  will  been  revoked? 

4.  Does  the  will  fail  to  take  efl'ect? 

5.  Advancements. 

6.  "  On  the  part  of  "  father  or  mother. 

7.  From  a  deceased  husband  or  wife. 

8.  Succession  tax. 

§  1.  Devisable  property  generally. —  Under  the  laws 
of  the  State  of  Xew  York,  all  the  property  of  a  de- 
ceased person  remaining  after  the  payment  of  debts, 
funeral  expenses,  and  the  expenses  of  administration, 
which  is  not  disposed  of  by  a  valid  will,  descends  or 
is  distributable  to  the  relatives  of  the  deceased  in  the 
proportions  mentioned  in  the  following  chapters. 
Where  the  deceased  leaves  a  will  or  supposed  will, 
the  property  to  be  divided  may  be  ascertained  with 
some  difficulty.  A  lost  or  fraudulently  destroyed 
will,  if  properly  established,  has  full  effect.  If  a 
will  appears  to  exist  an  investigation  of  the  validity 
and  effect  of  the  supposed  will  is  necessary  to  deter- 
mine what,  if  any,  property  passes  by  intestate  suc- 
cession. Thus,  although  no  treatise  on  the  subject  of 
[20] 


OF   THE    PKOrj:KTY    TO    BE    DIVIDED.  21 

wills  can  be  here  undertaken,  the  following  necessary 
inquiries  will  be  indicated:  (1)  Did  the  deceased 
make  a  will?  (2)  Has  that  will  been  revoked  in 
whole  or  in  part  ?  (3)  Does  the  will,  being  properly 
made  and  not  being  revoked,  fail  to  take  effect  wholly 
or  in  part  ? 

As  affecting  the  property  to  pass  by  intestate  suc- 
cession, another  important  inquiry  necessarily  arises 
in  case  the  deceased  leaves  no  valid  will,  or  dies  in- 
testate as  to  personal  estate  only.  It  is:  Did  the 
deceased  make  advancements  during  his  lifetime  that 
should  be  brought  into  hotchpot  ?  The  subject  of  ad- 
vancements will  be  reseiwed  for  one  of  the  last  sec- 
tions of  this  chapter.  The  last  section  will  be  devoted 
to  cases  where  real  estate  is  said  to  have  come  to  the 
deceased  on  the  part  of  his  father  or  mother. 

§  2.  Did  the  deceased  make  a  will?  To  determine 
what,  if  any,  property  passes  by  the  laws  of  intestate 
succession,  by  reason  of  total  or  partial  intestacy,  it 
is  necessary,  among  other  things,  to  inquire :  Did 
the  deceased  make  a  Avill  ?  After  a  diligent  search 
has  been  made,  and  what  appears  to  be  a  last  will  and 
testament  of  the  deceased  is  found,  it  must  be  deter- 
mined, on  behalf  of  the  claimant  or  inquirer,  whether 
or  not  the  apparent  will  was  properly  made.  As  an 
aid  in  the  pursuit  of  such  inquiry,  the  following  list 
of  suggestions  may  be  found  useful : 

May  not  the  supposed  will  be  a  forgery  ? 


22  INTESTATE    SUCCESSION"    IX    NEW    YOItK. 

Was  it  executed  bv  the  deceased  while  of  unsound 
mind? 

Was  it  the  result  of  undue  influence  practiced  on 
the  deceased? 

Was  it  the  result  of  fraud  ? 

Was  it  subscribed  bv  the  testator  at  the  end 
thereof  ? 

Was  it  subscribed  bj  two  witnesses  at  the  end 
thereof  ? 

Did  the  testator  request  each  witness  to  subscribe 
as  such  ? 

Did  the  testator  subscribe,  or  acknowledge  his  sub- 
scription, in  the  presence  of  each  witness  ? 

Did  the  testator  declare  to  each  witness,  at  the 
time  of  subscribing  or  acknowledging  the  sub- 
scription, that  the  instrument  was  his  last  will 
and  testament  ? 

If  the  will  is  a  will  of  real  estate  was  it  made  by  a 
person  twenty-one  years  of  age  or  over  ? 

If  the  will  is  a  will  of  personal  estate,  and  made 
by  a  male,  was  he  of  the  age  of  eighteen  years 
or  upwards? 

If  the  will  is  a  will  of  personal  estate,  and  made 
by  a  female,  was  she  of  the  age  of  sixteen  years 
or  upwards  ? 

If  the  will  is  nuncupative  or  unwritten,  is  it  a  will 
of  personal  property,   and  was  it  made  by  a 


OF    THE    PROPERTY    TO    BE    DIVIDED.  23 

soldier  while  in  actual  military   service,  or  a 
mariner  while  at  sea  ? 

§  3.  Has  the  will  been  revoked?  —  To  determine 
what,  if  any,  property  passes  by  the  laws  of  intestate 
succession  by  reason  of  total  or  partial  intestacy,  it 
is  necessary,  among  other  things,  to  inquire:  Has 
the  will  of  the  deceased  been  revoked  wholly  or  in 
part  ?  To  aid  in  this  inquiry  the  following  sug- 
gestions may  be  found  useful : 

(1)  As  to  the  revocation  of  a  will  as  a  whole.  Was 
the  will  revoked  — 

By  a  subsequent  wall  or  writing  executed  with  the 

same  formalities  as  a  will  ? 
By  the  testator,  in  person,  burning,  tearing,  can- 
celling, obliterating  or  destroying  the  will,  with 
the  intent  and  for  the  purpose  of  revoking  the 
same  ? 
By  another  person,  in  the  testator's  presence,  by 
his  direction  and  consent,  doing  like  things  with 
the  like  purpose  of  the  testator,  and  can  the  di- 
rection and  consent  of  the  testator  and  the  fact 
of  such  injury  or  destruction  be  proved  by  two 
witnesses  ? 
By  the  subsequent  marriage  of  a  w^oman  ? 
By  the  subsequent  marriage  of  a  man  and  the  birth 
of  issue  before  or  after  the  testator's  death,  where 
the  wife  or  issue  survive,  and  the  will  disposes 
of  the  whole  of  the  testator's  estate,  without  pro- 


24  INTESTATE    SUCCESSION    IN    NEW    YORK. 

vision  being  made  for  the  issue  by  some  settle- 
ment or  in  the  will,  and  without  mentioning  the 
issue  in  the  will  in  such  a  way  as  to  show  an 
intent  not  to  make  such  provision  ? 

(2)  As  to  the  revocation  of  parts  of  wills.  Was 
the  devise  or  bequest  revoked  — 

By  the  testator  divesting  himself  of  the  thing  de- 
vised or  bequeathed  ? 

By  the  testator  executing  an  instrument  altering 
but  not  wholly  divesting  himself  of  his  estate 
or  interest  in  the  property  previously  devised 
or  bequeathed  by  him,  wherein  he  declares  that 
it  shall  operate  as  a  revocation  ? 

By  the  testator  executing  an  instrument  altering 
but  not  wholly  divesting  himself  of  his  estate 
or  interest  in  property  previously  devised  or 
bequeathed  by  him,  the  provisions!  of  which  in- 
strument are  wholly  inconsistent  with  the  teraas 
and  nature  of  such  previous  devise  or  bequest, 
where  such  provisions  in  the  instrument  do  not 
depend  on  a  condition  unperformed,  or  con- 
tingency which  has  not  happened  ? 

§  4.  Does  the  will  fail  to  take  effect  ?  —  To  deter- 
mine what,  if  any,  property  passes  by  the  laws  of 
intestate  succession,  by  reason  of  total  or  partial  in- 
testacy, it  is  necessary,  among  other  things,  to  in- 
quire:    Does  the  will,  being  properly  made  and  not 


OF    THE    PKOPEKTY    TO    BE    DIVIDED.  2o 

being  revoked,  fail  to  take  effect  wholly  or  in  part? 
To  aid  in  this  inquiry  the  follo"vving  suggestions  may 
be  found  useful : 
Does  the  will  fail  wholly  or  in  part  by  reason  of — 

Being  void  for  uncertainty  ? 

Illegally  suspending  the  power  of  alienation  ? 

Directing  illegal  accumulation  of  income  ? 

Gifts  being  made  to  a  subscribing  witness  whose 
testimony  is  necessary  to  prove  the  will  ? 

Too  large  a  portion  of  the  estate  being  given  to 
charitable,  literary,  etc.,  associations,  where  the 
testator  leaves  a  husband,  wife,  child  or  parent  ? 

Gifts  being  made  to  literary,  etc.,  associations  in 
a  will  not  executed  two  months  before  the  testa- 
tor's death? 

The  death  of  a  legatee  or  devisee  before  the  death 
of  the  testator  ? 

The  gift  being  conditional  and  the  condition  hav- 
ing failed  ? 

The  legatee  or  devisee  being  a  corporation  which 
has  not  been  expressly  authorized  by  law  to  take 
under  a  will,  or  which  has  exceeded  the  limit 
allowed  by  law  ? 

The  subsequent  birth  of  a  child  ? 

g  5.  Advancements. —  Where  a  deceased^  has  given 
real  or  personal  estate,  or  both,  to  a  child,  with  a  view 

1  Whether  a  man  or  woman.     Kintz  v.  Friday,  4  Dem.  540. 


26  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

to  a  portion  or  settlement  in  life,  such  a  gift  is  deemed 
an  advancement,^  and  in  the  cases  hereafter  men- 
tioned must  be  taken  into  consideration  on  the  divi- 
sion of  estates.^  If  the  deceased  left  no  valid  will, 
or  if  the  deceased  left  a  will  which  disposed  of  all 
his  real  estate,  leaving  only  personal  estate  to  pass  by 
intestate  succession,  then,  under  the  Revised  Stat- 
utes, all  advancements  were  required  to  be  brought 

2  Maintaining,  educating,  or  money  given  without  such  in- 
tent is  not  an  advancement.  Code,  §  2733.  As  to  valueless 
property  given,  see  Marsh  v.  Gilbert,  2  Redf.  4G5.  An  ad- 
vancement is  presumed  from  paying  consideration  and  taking 
title  in  name  of  child.  Piper  v.  Barse,  2  Redf.  19 ;  Sanford 
V.  Sanford,  61  Barb.  299:  Proseus  r.  Mclntyre,  5  Barb.  424, 
432:  Partridge  V.  Havens,  10  Paige.  618,  626;  also  from  con- 
veyance of  land  to  child  without  consideration,  although  a  con- 
sideration be  recited.  Sanford  v.  Sanford,  61  Barb.  299;  also 
from  gift  of  a  considerable  sum  of  money  to  start  or  be  used 
in  business.  lb.:  M'Rae  r.  M'Rae,  3  Bradf.  199,  206.  As  to 
necessary  evidence,  see  Hicks  r.  Gildersleeve,  4  Abb.  Pr.  1 : 
Bell  V.  Chaplain,  64  Barb.  396 ;  De  Caumont  v.  Bogert,  36  Hun, 
382;  aff'd  sub  nom.  Matter  of  Morgan,  104  X.  Y.  74;  Alex- 
ander r.  Alexander,  1  N.  Y.  St.  R.  508.  As  to  the  history  of 
advancements,  see  Terry  r.  Dayton,  31  Barb.  519.  As  to  ef- 
fect of  a  subsequent  will,  Clark  v.  Kingsley,  37  Him,  246; 
Arnold  v.  Harann,  43  Hun,  278.  By  conveyance  to  wife  of 
child.     Palmer  r.  Culbertson,  143  N.  Y.  213. 

3  If  all  is  disposed  of  by  a  valid  will  there  can  be  no  question 
as  to  advancements.  Hays  r.  Hibbard.  3  Redf.  28.  As  to  the 
rights  of  post-testamentary  cliildren,  see  Sanford  r.  Sanford, 
61  Barb.  298. 


OF    THE    PROPERTY    TO    BE    DIVIDED.  27 

into  liotclipot  on  the  division  of  tlie  estate."*  But 
that  was  not  the  case  if  the  deceased  left  a  valid  will 
which  failed  to  dispose  of  all  his  real  estate.^  The 
present  statutes  have  been  somewhat  modified  in 
form.** 

Wliere  an  advancement  is  brought  into  hotchpot, 
if  it  is  equal  to  or  greater  than  the  amount  or  share 
which  the  child,  who  has  been  advanced,  Avould  be 
entitled  to  receive,  considering  the  value  of  the  prop- 
erty advanced  as  part  of  the  devisable  estate,  then 
such  child  and  its  descendants  are  excluded  from  any 
share  therein.*^  If  the  advancement  be  less,  he  or  his 
descendants  are  entitled  to  receive  only  so  much  real 
and  personal  estate  as  shall  be  sufficient  to  make  all 

4  1  R.  S.  754,  §  23,  etc.;  2  Id.  97,  §  76,  etc.  The  first-men- 
tioned law  applies  to  advancements  only  in  cases  of  total  intes- 
tacy where  the  deceased  leaves  real  estate  to  descend  to  his 
heirs.  Thompson  r.  Carmichael,  3  Sandf.  €h.  120,  127  ;  Hicks 
r.  Gildersleeve,  4  Abb.  Pr.  1;  Kent  v.  Hopkins,  86  Hun,  611; 
Messman  r.  Egenberger,  46  App.  Div.  46.  The  last-mentioned 
sections  of  the  statutes  apply  alike  to  cases  of  total  or  partial 
intestacy  where  there  is  no  real  estate  to  descend  to  the  heirs 
of  the  deceased.  Thompson  r.  Carmichael,  3  Sandf.  Ch.  120, 
127:  Hays  v.  Hibbard,  3  Redf.  28;  Hicks  v.  Gildersleeve,  4 
Abb.  Pr.  1. 

5  Thompson  i\  Carmichael,  3  Sandf.  Ch.  120,  127.  It  seems 
that  lands  without  the  State  are  not  to  be  considered.  M'Rae 
V.  M'Rae,  3  Bradf.  199,  206. 

CR.  P.  Law,  §  295;  Code,  §  2733. 


28  INTESTATE    SUCCESSION    IN    NEW    YORK. 

the  shares  of  the  children^  as  near  equal  as  can  be 
estimated.^ 

§  6.  "  On  the  part  of  "  father  or  mother. —  Succes- 
sion to  real  estate  is  made  to  depend  in  certain  cases 
upon  the  fact  of  the  inheritance  having  come  to  the 
deceased  on  the  part  of  the  father  or  on  the  part  of 
the  mother.^  By  the  statute  real  estate  is  said  to 
have  come  to  the  deceased,  on  the  part  of  father  or 
mother,  as  the  case  may  he,  where  the  inheritance 
came  to  the  deceased  by  devise,  gift  or  descent  from 
the  parent  referred  to,  or  from  any  relative  of  the 
blood  of  such  parent.^^ 

§  7.  *'  From  a  deceased  husband  or  wife." —  In  cer- 
tain unusual  cases,  where  real  or  personal  property 

7  Grandchildren  representing  children.  Beebe  r.  Estabrook, 
79  N.  Y.  246,  aflf'g  11  Hun,  523. 

8R.  P.  Law,  §  295;  Code,  §  2733.  See  also  Sanford  f. 
Sanford,  61  Barb.  298;  Terry  v.  Dayton,  31  Barb.  519;  San- 
ford V.  Sanford,  4  Hiin,  753. 

9R.  P.  Law,  §§  284,  288. 

10  R.  P.  Law,  §  280:  Conkling  v.  Brown,  8  Abb.  Pr.  N.  S. 
345;  s.  c,  57  Barb.  265;  Leary  v.  Leary,  50  How.  Pr.  122; 
Wells  V.  Seeley,  47  Hun^,  109.  Not  including  purchases  for 
value.  Morris  V.  Ward,  36  N.  Y.  587.  The  devise,  gift  or 
descent  must  be  immediate.  Hyatt  v.  Pugsley,  33  Barb.  373 ; 
s.  p.,  s.  c,  23  Id.  300;  Valentine  r.  Wetherill,  31  Barb.  665: 
Adams  v.  Anderson,  23  Misc.  705 ;  Pighter  r.  Ludwig,  39  Misc. 
416.  See  also  Vanderheyden  V.  Crandall,  2  Denio,  9;  Torrey 
V.  Shaw,  3  Edw.  Ch.  356. 


OF    PROPERTY   TO    BE   DIVIDED,  29 

comes  to  an  intestate  from  a  deceased  husband  or 
wife  the  heirs  or  next  of  kin  of  such  husband  or  wife 
are  entitled  to  take.^^  Real  estate  thus  descends  only 
where  the  intestate  leaves  no  heirs  nearer  than  great- 
uncles  and  great-aunts..  Personal  property  is  thus 
taken  only  when  the  intestate  leaves  no  husband,  wife, 
descendant,  or  next  of  kin. 

§  8.  Succession  tax. — A  tax  of  5  per  cent,  is  im- 
posed on  real  and  personal  property  of  the  value  of 
$500,  or  over,  passing  to  all  relatives  except  descend- 
ants, father,  mother,  husband,  wife,  brother  or  sister. 
They  pay  1  per  cent,  if  the  property  passing  equals 
or  exceeds  $10,000.^^ 

11  See  Appendix  A.  and  B.     R.  P.  Law,  §  290a;   Code  Civ. 
Pro.  §  2732,  subd.  16. 

12  The  Tax  Law,  §§  220,  22L 


CHAPTER  III. 

OF  THE  RIGHTS  OF  WIDOW  AND  HUSBAND. 

§   1.  Widow  takes  Real  Estate. 

2.  Widow  takes  Personal  Estate. 

3.  Husband  takes  Real  Estate. 

4.  Husband   takes   Personal   Estate. 

§  1.  Widow  takes  Eeal  Estate. —  The  widow^  is  en- 
titled to  dower  in  the  real  estate  of  which  her  husband 
was  seized  of  an  estate  of  inheritance,  at  any  time 
during  the  continuance  of  the  marriage  relation,"  un- 
less she  has  voluntarily  released  her  right  or  it  has 
been  otherwise  destroyed.^  This  right  may  be  lost  in 
several  ways,  such  as:  by  joining  in  a  deed  of  con- 

1  Foreign  divorce  for  cruelty  of  husband  does  not  bar  dower. 
Starbuck  r.  Starbuck,  62  App.  Div.  437. 

2R.  P.  Law,  §  170;  Leach  v.  Leach,  21  Hun,  381;  Durando 
V.  Durando,  23  N.  Y.  331.  As  to  partnership  property,  see 
Dawson  v.  Parsons,  10  Misc.  428:  Riddell  v.  Riddell.  85  Hun, 
482. 

3  A  woman,  who  has  been  divorced  from  her  husband  for  his 
infidelity,  does  not  lose  her  right  to  dower  or  to  a  distributive 
share  of  his  personalty  by  remarriage  in  his  lifetime.  Van 
Voorhis  v.  Brintnall,  23  Hun,  260;  rev'd  on  other  grounds  in 
86  N.  Y.  18.  Dower  may  be  released  after  divorce.  L.  1802, 
ch.  616.  Power  of  attorney  may  be  given  to  release  dower. 
L.  1893,  ch.  599.  No  dower  in  estates  in  remainder.  Clark  v. 
Clark,  84  Hun.  362. 
[30] 


OF    THE    RIGHTS   OP"    WIDOW    ASD    IIUSBA.XD.  ol 

veyance  ;^  accepting  a  pecuniaiy  provision  in  lieu  of 
dower  f  the  lands  of  her  husband  being  taken  by  the 
right  of  eminent  domain  f  the  foreclosure  of  a  mort- 
gage executed  by  the  widow'^  as  well  as  her  husband, 
or  given  by  the  husband  before  marriage,^  or  to  secure 

4Elniendorf  v.  Lockwood,  57  N.  Y.  322;  aff'g  4  Lans.  393. 
As  to  a  quit-claim  to  a  stranger  to  the  title,  see  Merchants' 
Bank  v.  Thompson,  55  N.  Y.  7;  Hammond  v.  Pennock,  61  N.  Y. 
145.  See  also  Ford  v.  Knapp,  31  Hun,  522;  Armstrong  v. 
Armstrong,  1  N.  Y.  St.  R.  529.  Dower  revived  if  deed  defeated 
by  sale  under  a  fair  judgment  against  husband.  Kinchliffe 
r.  Shea,  103  N.  Y.  153. 

5R.  P.  Law,  §  288:  Sanford  r.  Jackson,  10  Paige  Ch.  266; 
Jones  i:  Fleming,  104  N.  Y.  418.  An  election  to  accept  pro- 
vision in  lieu  of  dower  may  be  set  aside  if  widow  at  time  of 
election  was  ignorant  of  the  extent  of  her  dower  right.  Hind- 
ley  V.  Hindley,  29  Hun,  318.  Effort  to  obtain  information 
should  be  shown.  Akin  v.  Kellogg,  48  Hun,  459.  Such  pro- 
vision must  be  to  take  effect  in  possession  or  profit  on  the 
death  of  the  husband.  Crain  r.  Cavana.  36  Barb.  410.  An 
agreement  in  articles  of  separation  will  not  release  dower 
imless  the  widow  ratifies  the  agreement  after  her  husband's 
death.  Guidet  v.  Brown,  3  Abb.  N.  C.  295.  As  to  effect  of 
marriage  settlements  on  rights  of  wife,  see  Pierce  v.  Pierce, 
9  Hun,  ,50;  aff'd  in  71  N.  Y.  154;  Graham  v.  Graham,  67  Hun, 
329.  See  as  to  ante-nuptial  contract  to  take  legacy,  etc., 
Young  r.  Hicks,  92  N.  Y.  235 ;  aff'g  Matter  of  Young.  27  Hun, 
54. 

6  Code  Civ.  Pro.  §  2348. 

7  Moore  v.  Mayor,  etc.,  of  N.  Y..  8  N.  Y.  110. 

8  Bank  of  Ogdensburgh  i\  Arnold,  5  Paige  Ch.  38.  As  to 
what  is  a  sufficient  foreclosure,  see  Ocumpaugh  v.  Wing,  12 
Week.  Dig.  566. 


32  INTESTATE    SUCCESSION    IN    NEW    YORK. 

purchase  money  f  and  divorce  for  her  own  infidel- 
ity/°  or  b}'  legal  proceedings  where  the  wife  is  an 
infant  or  incompetent  to  manage  her  affairs  by  reason 
of  Imiacy,  idioey  or  habitual  drunkenness.^^ 

A  widow  may  tarry  in  the  chief  house^^  of  her  hus- 
band, forty  days  after  his  death,  without  being  liable 
to  any  rent  for  the  same,  and  in  the  meantime  she 
shall  have  her  reasonable  sustenance  out  of  the  estate 
of  her  husband. ^^ 

§  2,  Widow  takes  Personal  Estate. — If  the  deceased 
leaves  any  descendant  the  widow  takes^*  one-third,^^ 

9  Van  Duyne  r.  Thayre,  14  Wend.  233;   19  Id.  162. 

10  R.  P.  Law,  §  284. 

11  As  to  divorces  granted  in  New  York.  Code  Civ.  Pro. 
§  1760.  As  to  valid  foreign  divorces.  Van  Cleaf  v.  Burns, 
118  N.  Y.  549;  133  Id.  540.  As  to  effect  of  annulling  second 
marriage.  Price  v.  Price,  124  N.  Y.  589.  As  to  Avhat  are 
not  valid  foreign  divorces  for  this  purpose.  Rundle  v.  In- 
wegan,  9  Civ.  Pro.  R.  (Browne)   328. 

12  The  house  must  be  owned  by  her  husband.  Voleekner  v. 
Hudson,  1  Sandf.  215. 

13  R.  P.  Law,  §  184.  Between  June  7,  1889,  and  April  23, 
1800,  in  certain  cases,  widows  might  be  entitled  to  an  addi- 
tional interest  in  lands.  L.  1889,  ch.  406;  repealed  law  1890, 
ch.  173. 

i-t  A  widow  by  accepting  a  provision  in  lieu  of  dower  is  not 
thereby  precluded  from  taking  her  distributive  share  of  per- 
sonal estate  undisposed  of  by  will.  Edsall  v.  Waterbury,  2 
Redf.  48;  Hatch  v.  Bassett,  52  N.  Y.  359;  Lefevre  v.  Lefevre, 
59  Id.  434. 

15  Code  Civ.  Pro.  §  2732,  subd.  1. 


OF    THE    EIGHTS   OF    WIDOW   AND    HUSBAND.  33 

If  the  deceased  leaves  no  descendant,  but  leaves  a 
parent,  the  widow  takes  one-half. ^^  If  the  deceased 
leaves  no  descendant  or  parent,  but  leaves  a  brother, 
sister,  nephew,  or  niece,  the  widow  takes,  besides  the 
one-half  above  referred  to,  all  of  the  other  half  to  the 
amount  of,  but  not  to  exceed,  two  thousand  dollars.^^ 
If  the  deceased  leaves  no  descendant,  parent,  brother, 
sister,  nephew,  or  niece,  the  widow  takes  all.^^ 

A  woman  divorced  in  New  York,  for  her  o^^^l  or 
her  husband's  infidelity,  is  not  entitled  to  a  dis- 
tributive share  as  widow. -^^  Where  foreign  divorces 
are  valid  and  dissolve  the  marriage  tie  they  seem  to 
have  the  same  effect.^** 

Where  a  man  having  a  family  shall  die  leaving  a 
widow  or  a  minor  child  or  children,  the  widow,  if 
there  be  any,  during  the  time  she  shall  live  with  and 
provide  for  such  child  or  children,  shall  remain  in 
possession  of  the  following  named  property,  if  owned 
by  her  husband  at  the  time  of  his  death^^ :  all  spinning 

ifi  Id.,  subds.  2,  6,  7. 

17  Id.,  subd.  3;  Doughty  v.  Stihvell,  1  Bradf.  300;  Can- 
field  V.  Crandall,  4  Dem.  Ill,  120.  See  Parker  i'.  Linden,  44 
Hun,  515. 

18  Code  Civ.  Pro.  §  2732,  subd.  3. 

19  Code  Civ.  Pro.  §   1760;  Matter  of  Ensign,  103  N.  Y.  284. 

20  2  Bishop  on  Marriage  and  Divorce,  §§  705-714. 

21  This  provision  for  the  family  cannot  be  defeated  by  a  tes- 
tator. Vedder  v.  Saxton,  46  Barb.  188.  As  to  effect  of  mar- 
riage settlement,  see  Young  v.   Hicks,   92  N.  Y.   235;    Code, 

3 


34  INTESTATE    SUCCESSION    IN    NEW    YORK. 

wheels,  weaving  looms,  one  knitting  machine,  one 
sewing  machine,  stoves  put  np  or  kept  for  use  by  the 
family,  the  family  Bible,  family  pictures,  school 
books  "used  by  or  in  the  family,  other  books  not  ex- 
ceeding in  value  fifty  dollars  which  were  kept  and 
used  as  part  of  the  family  library ;  all  sheep  to  the 
number  of  ten,  with  their  fleeces,  and  the  yarn  and 
cloth  manufactured  from  the  same,  one  cow,  two 
swine,  and  the  pork  of  such  swine,  necessary  food  for 
such  swine,  sheep  or  cow  for  sixty  days ;  all  necessary 
provisions  and  fuel  for  the  widow,  child  or  children 
for  sixty  days ;  all  necessary  wearing  apparel,  beds, 
bedsteads  and  bedding ;  necessary  cooking  utensils ; 
the  clothing  of  the  family,  the  clothes  of  the  widow 
and  her  ornaments  proper  for  her  station ;  one  table, 
six  chairs,  twelve  knives  and  forks,  twelve  plates, 
twelve  teacups  and  saucers,  one  sugar  dish,  one  milk 
pot,  one  tea  pot,  twelve  spoons,  and  also  other  house- 
hold furniture  which  shall  not  exceed  one  hundred 
and  fifty  dollars  in  value^^  or  that  sum  of  money  in 
lieu  thereof. ^^  She  shall  also  remain  in  possession  of 
other  necessary  household  furniture,  provisions,  or 
other  personal  property  in  the  discretion  of  the  ap- 
praisers, to  the  value  of  not  more  than  one  hundred 

§  2713.  An  allowance  made  in  lien  of  articles.  Matter  of 
Williams,  31  App.  Div.  617. 

22  Code  Civ.  Pro.  §  2713:  Lydecker  r.  Eisemann,  3  Dem.  72. 

23  Kelly  v:  Moore,  18  Abb.  N.  C.  468. 


OF    THE    EIGHTS   OF    WIDOW   AND    HUSBAND.  OO 

and  fifty  dollars.''*  An  additional  allowance  in 
money  may  be  made  to  the  widow  in  the  absence  of 
other  enumerated  articles.^^  If  she  ceases  so  to  do  she 
may  retain,  as  her  own,  her  wearing  apparel,  her  or- 
naments, one  bed,  bedstead  and  bedding  for  the  same 
and  the  other  property  last  above  specified,  and  the 
other  articles  above  mentioned  shall  then  belong  to 
such  minor  child  or  children.  If  she  lives  with  and 
provides  for  such  minor  child  or  children  until  it  or 
they  become  of  full  age  all  the  articles  and  property 
above  mentioned  shall  belong  to  the  widow.  If  there 
be  no  minor  child  all  the  said  articles  and  property 
shall  belong  to  the  widow.^^ 

§  3.  Husband  takes  Eeal  Estate. —  The  husband  is 
entitled  to  curtesy  in  the  real  estate  of  which  his  wife 
died  seized,  and  which  is  undisposed  of  by  will,  if 
issue  of  the  marriage  has  been  born  alive,^^  and  the 

24  Sheldon  v.  Bliss,  8  X.  Y.  31;  Lydecker  v.  Eiseniann,  3 
Deni.  72. 

25  Matter  of  Williams.  31  App.  Div.  617;  Matter  of  Hem- 
Iniry,  37  Misc.  454;  Matter  of  Hulse,  41  Misc.  307. 

26  Code  Civ.  Pro.  §  2713.  See  p.  37,  n.  33.  See  Bingham  v. 
Brush,  33  Barb.  596. 

27  Leach  v.  Leach,  21  Hun,  381;  Zimmerman  v.  Sehoenfeldt, 
3  Hun,  692;  s.  c,  6  Supm.  Ct.  (T.  &  C.)  141;  Arrowsmith  (;. 
Arrowsmith,  8  Hun,  606;  Graham  v.  Luddington,  19  Id.  246; 
Coit  r.  Grey,  25  Id.  444;  Kirk  r.  Richardson,  32  Id.  434;  Mat- 
tor  of  Winne,  2  Lans.  21;  Burke  v.  Valentine,  52  Barb.  412; 
s.  c,  5  Abb.  Pr.  N.  S.  164;  aff'd  Ct.  of  App.  1872,  6  Alb.  L.  J, 


36  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

curtesy  be  not  barred,  as  by  a  divorce  for  the  infidel- 
ity of  the  husband.^* 

§  4.  Husband  takes  Personal  Estate. —  If  the  de- 
ceased leaves  any  descendant,  the  husband  takes  one- 
third.^     If  the  deceased  leaves  no  descendant,  the 

husband  takes  all.^*^ 

^ 

1G7;  Hatfield  r.  Sneden,  54  N.  Y.  280;  rev'g  42  Barb.  Gl.^. 
See  contra,  Billings  v.  Baker,  28  Barb.  343.  As  to  seizin,  see 
Gibbs  V.  Esty,  22  Hun,  2G6;  Baker  v.  Oakwood,  49  Hun,  416; 
Bevins  v.  Riley,  24  Week.  Dig.  35.  As  to  the  birth  of  the  child, 
see  Jackson  v.  Johnson,  5  Cow.  74,  95,  102;  Marcellis  v.  Thal- 
himer,  2  Paige,  35. 

28Renwick  t'.  Renwick,  10  Paige  Ch.  420;  Code  Civ.  Pro. 
1759.  Valid  foreign  or  domestic  divorces,  dissolving  the  mar- 
riage tie  because  of  the  misconduct  of  either  husband  or  wife, 
would  seem  to  have  the  same  effect.  2  Bishop  on  Marriage 
and  Divorce,  §  712;  Matter  of  Ensign,  103  N.  Y.  284;  Van 
Cleaf  V.  Burns,  133  N.  Y.  540.  As  to  wiiat  are  valid  foreign 
divorces.  Bundle  v.  Inwigan,  9  Civ.  Pro.  R.  328. 

20  Code  Civ.  Pro.  §  2734. 

30  Matter  of  Harvey,  3  Redf.  214  (said  to  have  been  aff'd 
by  Genl.  T.  Supm.  Ct.)  ;  Robins  r.  McClure,  100  N.  Y.  328. 
That  administration  by  the  husband  is  necessary.  Matter  of 
O'Neil,  2  Redf.  544.  See  also  Barns  v.  Underwood,  47  N.  Y. 
351;  Ransom  v.  Nichols,  22  N.  Y.  110;  McCosker  v.  Golden, 
1  Bradf.  G4.  The  married  woman's  acts  do  not  destroy  a  hus- 
band's common-law  right  to  succeed  to  his  wife's  personal  es- 
tate on  her  decease.  They  simply  give  the  wife  power  to  dis- 
pose of  her  estate  which  must  be  actually  exercised  to  cut  off 
the  husband's  right.  Barnes  v.  Underwood,  47  N.  Y.  351 ;  Ran- 
som V.  Nichols,  22  N.  Y.  110;  Vallance  v.  Busch,  8  Abb.  Pr. 
368;  s.  c,  28  Barb.  633;   17  How.  Pr.  213;  Liish  r.  Alburti^. 


OF    THE    RIGHTS   OF    WIDOW    AND    HUSBAND.  6i 

A  valid  foreign  or  domestic  divorce,  dissolving  the 
marriage  tie  for  the  misconduct  of  the  husband  or 
Avifc,  seems  to  take  away  the  right  of  the  husband  as 
such  to  any  personal  estate.^^ 

A  husband  is  also  entitled  to  have  certain  personal 
property,  heretofore  mentioned,^^  set  apart  for  the 
use  and  benefit  of  himself  or  the  minor  children.^^ 

1  Bradf.  45G :  McCosker  r.  Golden,  1  Bradf.  64;  Shumway  r. 
Cooper,  16  Barb.  556.  See  also  Robins  v.  McClure,  33  Hun, 
368. 

31  Code  Civ.  Pro.  §  1759;  Renwick  i\  Renwick,  10  Paige 
Ch.  420;  2  Bishop  on  Marriage  and  Divorce,  §§  705-714;  Mat- 
ter of  Ensign,  103  N.  Y.  284. 

32  See  Widow  —  Personal  Estate,  p.  32. 

33  Code  Civ.  Pro.  §  2713.  The  same  articles  and  personal 
property  as  are  set  apart  for  the  wife,  ante,  p.  33. 


CHAPTEK  IV. 

OF  THE  RIGHTS  OF  DESCENDANTS. 

§   1.  Children  take  Real  Estate. 

2.  Children  take  Personal  Estate. 

3.  Grandchildren  take  Real  Estate. 

4.  Grandchildren  take  Personal  Estate. 

5.  Great-grandchildren  take  Real  Estate. 

G.  Great-grandchildren  take  Personal  Estate. 

7.  Great-great-grandchildren  take  Real  Estate. 

8.  Great-great-grandchildren  take  Personal  Estate. 

§  1.  Children'  take  Real  Estate. —  If  the  deceased 
leaves  a  widow,  the  chiklren  inherit  real  estate  subject 
to  her  rights.^  If  the  deceased  leaves  a  husband,  to 
whom  a  child  has  been  bom  alive,  the  real  estate  is 
taken  subject  to  his  right  of  curtesy.^ 

Subject  to  the  rights  of  the  husband  or  widow 
above  mentioned,  the  children  inherit  all  the  real 
estate  in  equal  portions,*  deceased  children,  who  have 
descendants  living,  being  counted  for  the  purpose  of 
division  as  themselves  living.^ 

1  If  there  is  any  adopted  child  see  Adopted  Children,  p.  18. 

2  The  rights  of  a  widow  to  real  estate  may  be  barred  or 
they  may  exceed  dower.    See  Widow,  p.  30,  §  1. 

3  See  Husband,  p.  3.5. 

4  As  tenants  in  common.     R.  P.  Law.  §  293;  Cole  V.  Irvine, 
G  Hill,  634,  G38. 

5R.  P.  Law,   §§  281-283. 
[38] 


OF    THE    EIGHTS    OF    DESCENDANTS.  39 

§  2.  Children*'^  take  Personal  Estate If  the  de- 
ceased leaves  a  widow'  or  husband^  the  children  take 
two-thirds  in  equal  portions ;  otherwise  all,  in  the 
same  manner;  deceased  children,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  division 
as  themselves  living.^ 

Minor  children  are  also  entitled,  with  or  without 
the  widow  or  husband,  to  have  certain  personal  prop- 
erty, heretofore  mentioned,^^  set  apart  for  their  use 
and  benefit. 

§  3.  Grandchildren  take  Real  Estate. —  Grandchil- 
dren inherit  no  portion  of  the  real  estate  of  a  de- 
ceased if  their  parent  (being  a  child  of  the  deceased) 
be  living,"  If  the  deceased  leaves  a  -vvidow  the  real 
estate  is  taken  subject  to  her  rights.^^  If  the  deceased 
leaves  a  husband,  to  whom  a  child  was  bom  alive,  the 
real  estate  is  taken  subject  to  his  right  of  curtesv.^^ 

Subject  to  the  rights  of  the  husband  or  ^vidow 

6  If  there  is  any  adopted  child  see  Adopted  Children,  p.  18. 

7  Code  Civ.  Pro.   §  2732. 

8  Code  Civ.  Pro.  §  2734. 

9  Code  Civ.  Pro.  §  2732,  subds.  1,  4;  §  2734. 

10  For  a  practical  enumeration  of  the  articles  and  the  rights 
of  the  minors,  see  Widow  —  Personal  Estate,  p.  32.  See  also 
Husband  —  Personal  Estate,  p.  37,  n.  33;  Code  Civ.  Pro.  §  2713. 

11  R.  P.  Law,   §§   281-283. 

12  The  rights  of  a  widow  to  real  estate  may  be  barred  or 
they  may  exceed  dower.    See  Widow,  p.  30,  §  1. 

13  See  Husband,  p.  35. 


40  INTESTATE    SUCCESSION    IN    NEW    YORK. 

above  mentioned,  grandchildren  inherit  real  estate  as 
follows  :^^ 

(1.)  If  the  deceased  leaves  no  surviving  child, 
grandchildren  inherit  all  the  real  estate  in 
equal  portions,  deceased  grandchildren,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  one  or  more  surviving 
children,  grandchildren,  who  are  children  of  a 
deceased  child,  take  in  equal  portions  the  share 
their  parent  (a  child  of  the  deceased)  would 
have  taken  if  living;  Avhicli  would  be  such  por- 
tion as  would  come  to  their  parent  (a  child  of 
the  deceased)  upon  the  equal  division  of  the 
same  among  the  children,  deceased  children, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

§  4.  Grandchildren  take  Personal  Estate. —  Grand- 
children take  no  portion  of  the  personal  estate  of 
a  deceased  if  their  parent  (being  a  child  of  the  de- 
ceased) be  living.-'^ 

Where  grandchildren  are  not  thus  excluded  they 
take  or  share  in  two-thirds  of  the  personal  estate, 

14  R.  P.  Law,  §§  281-283. 

15  Code  Civ.  Pro.  §  2732,  subd.  1,  4,  10,  11;  §  2734. 


OF    THE    EIGHTS    OF    DESCENDANTS.  41 

if  the  deceased  leaves  a  widow  or  husband ;  other- 
wise they  take  or  share  in  all,  as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  child,  grandchil- 
dren take  in  equal  portions,  deceased  grandchil- 
dren, who  have  descendants  living,  being  counted 
for  the  purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  one  or  more  children, 
the  grandchildren,  who  are  children  of  a  de- 
ceased child,  take  in  equal  portions"  the  share 
their  parent  (a  child  of  the  deceased)  would 
have  taken  if  living;  which  would  be  such  por- 
tion as  would  have  come  to  their  parent  upon 
the  equal  division  of  all  or  two-thirds,  as  the 
case  may  be,  among  the  children  of  the  de- 
ceased, deceased  children,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living.  ^^ 

§  5.  Great-grandchildren  take  Real  Estate. —  Great- 
grandchildren inherit  no  portion  of  the  real  estate  of 
a  deceased  if  their  parent  (being  a  grandchild  of  the 
deceased)  or  grandparent  (being  a  child  of  the  de- 

16  Code,  §  2732.     See  also  Widow,  p.  32,  and  Husband,  p.  36. 

17  Deceased  grandchildren,  Avho  have  descendants  living,  be- 
ing counted  for  the  purpose  of  division  as  themselves  living. 

18  See  also  §  2  of  this  chapter. 


42  I>'TESTATE    SUCCESSION    IN    NEW    YORK. 

ceased)  be  living. ^^  If  the  deceased  leaves  a  widow 
the  real  estate  is  taken  subject  to  her  rights,^*^  If  the 
deceased  leaves  a  husband  to  whom  a  child  was  born 
alive,  the  real  estate  is  taken  subject  to  his  right  of 
curtesy.^^ 

Subject  to  the  rights  of  the  husband  or  widow, 
above  mentioned,  great-grandchildren  inherit  real  es- 
tate as  follows  :^ 

(1.)  If  the  deceased  leaves  no  surviving  child  or 
grandchild,  great-grandchildren  inherit  in  equal 
portions,  deceased  great-grandchildren  who  have 
descendants  living  being  counted  for  the  purpose 
of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  no  child,  but  leaves  one 
or  more  surviving  grandchildren,  the  great- 
grandchildren, who  are  children  of  a  deceased 
grandchild,  take  in  equal  portions^  the  share 
their  parent  (being  a  grandchild  of  the  de- 
ceased) would  have  taken  if  living;  which  would 

19  R.  p.  Law,  §§  281-283. 

20  The  rights  of  a  widow  to  real  estate  may  be  barred  or 
they  may  exceed  dower.    See  Widow,  p.  30,  §  1. 

21  See  Husband,  p.  35. 

22  R.  p.  Law,  §§  281-283. 

23  Deceased  great-grandchildren,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 
living. 


OF    THE    EIGHTS    OF    DESCENDANTS.  43 

be  such  portion  of  the  real  estate  as  would  come 
to  their  parent  upon  the  equal  division  of  the 
same  among  the  grandchildren  of  the  deceased, 
deceased  grandchildren,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

(3.)  If  the  deceased  leaves  one  or  more  surviving 
children,  the  gToat-grandchildren,  who  are  not 
excluded  by  living  ancestors  as  above,  take  or 
share  in,  by  representation,  only  that  portion 
of  the  real  estate  which  their  grandparent  (be- 
ing a  child  of  the  deceased)  would  have  taken 
if  living;  which  would  be  such  portion  of  the 
real  estate  as  would  come  to  their  grandparent 
upon  the  equal  division  of  the  same  among  the 
children  of  the  deceased,  deceased  children,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

§  C.  Great-grandchildren  take  Personal  Estate — 
Great-grandchildren  take  no  portion  of  the  personal 
estate  of  a  deceased  if  their  parent  (being  a  grand- 
child of  the  deceased)  or  grandparent  (being  a  child 
of  the  deceased)  be  living.^ 

Wliere  great-grandchildren  are  not  excluded,  as 
above,  they  take  or  share  in  two-thirds  of  the  per- 

24  Code  Civ.  Pro.  §  2732,  subds.  1,  4,  10,  11;  §  2734. 


44  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

sonal  estate,  if  the  deceased  leaves  a  widow  or  lius- 
band.j  otherwise  they  take  or  share  in  all,  as  follows  i^"* 

(1.)  If  the  deceased  leaves  no  child  or  grandchild, 
great-grandchildren  take  in  equal  portions,  de- 
ceased great-grandchildren,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  di- 
vision as  themselves  living. 

(2.)  If  the  deceased  leaves  no  child,  but  leaves 
one  or  more  grandchildren,  the  great-grandchil- 
dren, who  are  children  of  a  deceased  grandchild, 
take  in  equal  portions^^  the  share  their  parent 
(a  grandchild  of  the  deceased)  would  have  taken 
if  living;  which  would  be  such  portion  of  the 
personal  estate  as  would  have  come  to  their 
parent  upon  the  equal  division  of  all  or  two- 
thirds,  as  the  case  may  be,  among  the  grandchil- 
dren of  the  deceased,  deceased  grandchildren, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. ^^ 

(3.)  If  the  deceased  leaves  one  or  more  children, 
great-grandchildren,  who  are  not  excluded  by  a 

25  Id.     See  also  Widow,  p.  32,  and  Husband,  p.  36. 

26  Deceased  great-grandchildren,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 
living. 

27  See  also  p.  40,  §  4,  subd.  1. 


OF    THE    EIGHTS    OF    DESCENDANTS.  45 

living  ancestor  as  above,  take  or  share  in  by 
representation  that  portion  which  their  grand- 
parent (a  child  of  the  deceased)  would  have 
taken  if  living ;  which  would  be  such  portion  of 
the  personal  estate  as  would  have  come  to  their 
grandparent  upon  the  equal  division  of  all  or 
two-thirds,  as  the  case  may  be,  among  the  chil- 
dren of  the  deceased,  deceased  children,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living.^^ 

§  7.  Great-great-grandchildren  take  Real  Estate. — 
Great-great-grandchildren  inherit  no  portion  of  the 
real  estate  of  a  deceased  if  their  parent  (being  a  great- 
grandchild of  the  deceased),  grandparent  (being  a 
grandchild  of  the  deceased),  or  great-grandparent 
(being  a  child  of  the  deceased)  be  living.^ 

If  the  deceased  leaves  a  widow  the  real  estate  is 
taken  subject  to  her  rights.^"  If  the  deceased  leaves 
a  husband  to  whom  a  child  was  bom  alive  the  real 
estate  is  taken  subject  to  his  right  of  curtesy.^^ 

Subject  to  the  rights  of  the  husband  or  widow  above 
mentioned,  great-great-grandchildren  inherit  real  es- 
tate, as  follows  :^^ 

28  See  also  p.  39,  §  2. 

29  R.  P.  Law,  §§  281-283. 

30  See  Widow,  p.  30,  §  1. 

31  See  Husband,  p.  35,  §  3. 

32  R.  P.  Law,  §§  281-283. 


46  INTESTATE    SUCCESSION    IN    NEW    YOHK. 

(1.)  If  the  deceased  leaves  no  surviving  child, 
grandchild  or  great-grandchild,  the  great-great- 
grandchildren inherit  in  equal  portions,  de- 
ceased great-great-grandchildren,  "who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  no  surviving  child  or 
grandchild,  but  leaves  one  or  more  great-grand- 
children, the  great-great-grandchildren,  who  are 
children  of  a  deceased  greatrgrandchild,  take  in 
equal  portions  ^^  the  share  their  parent  (being 
a  great-grandchild  of  the  deceased)  Avould  have 
taken  if  living;  which  would  be  such  a  portion 
of  the  real  estate  as  would  come  to  their  parent 
upon  the  equal  division  of  the  same  among  the 
great-grandchildren  of  the  deceased,  great-grand- 
children, who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living.^* 

(3.)  If  the  deceased  leaves  no  surviving  child,  but 
leaves  one  or  more  grandchildren,  the  great- 
great-grandchildren,  who  are  not  excluded  by 
a  living  ancestor  as  above,  take  or  share  in,  by 

33  Deceased  great-great-grandchildren,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  division  as  them- 
selves living. 

34  See  also  p.  41,  §  5. 


OF    THE    EIGHTS    OF    DESCENDANTS.  -iT 

representation,  only  that  portion  of  the  real 
estate  which  their  grandparent  (a  grandchild 
of  the  deceased)  would  have  taken  if  living; 
which  would  be  such  portion  as  would  come  to 
their  grandparent  upon  the  equal  division  of 
the  same  among  the  grandchildren  of  the  de- 
ceased, deceased  grandchildren,  who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living.^^ 

(4.)  If  the  deceased  leaves  one  or  more  surviving 
children,  the  great-great-grandchildren,  who  are 
not  excluded  by  a  living  ancestor  as  above,  take 
or  share  in,  by  representation,  only  that  portion 
of  the  real  estate  which  their  great-grandparent 
(a  child  of  the  deceased)  would  have  taken  if 
living;  which  would  be  such  portion  of  the  real 
estate  as  would  come  to  their  gTeat-grandparent 
upon  the  equal  division  of  the  same  among  the 
children  of  the  deceased,  deceased  children,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living.^^ 

§  8.  Great-great-grandchildren  take  Personal  Es- 
tate.—  Great-great-grandchildren  take  no  portion  of 
the  personal  estate  of  a  deceased  if  their  parent  (be- 
ing a  gi'eat-grandchild  of  the  deceased),  grandparent 

35  See  also  p.  39,  §  3. 
30  See  also  p.  38,  §  1.  . 


48  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

(being  a  grandchild  of  the  deceased),  or  great-grand- 
parent (being  a  child  of  the  deceased)  be  living.^^ 

Where  great-great-grandchildren  are  not  excluded, 
as  above,  they  take  or  share  in  two-thirds  of  the  per- 
sonal estate,  if  the  deceased  leaves  a  widow  or  hus- 
band, otherwise  they  take  or  share  in  all,  as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  child,  grandchild, 
or  great-grandchild,  the  great-great-grandchil- 
dren take  in  equal  portions,  deceased  great-great- 
grandchildren, who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(2.)  If  the  deceased  leaves  no  child  or  grandchild, 
but  leaves  one  or  more  great-grandchildren, 
great-great-grandchildren,  who  are  children  of 
a  deceased  great-grandchild,  take  in  equal  por- 
tions"^ the  share  their  parent  (a  great-grand- 
child of  the  deceased)  would  have  taken  if  liv- 
ing; which  %vould  be  such  portion  of  the  per- 
sonal estate  as  would  have  come  to  their  parent 
upon  the  equal  division  of  all  or  two-thirds,  as 
the  case  may  be,  among  the  great-grandchildren 

37  Code  Civ.  Pro.  §  2732,  subds.  1,  4,  10,  11;  §  2734. 

38  Id.    See  Widow,  p.  32,  §  2,  and  Husband,  p.  36,  §  4. 

39  Deceased  great-great-grandchildren,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division  as  them- 
selves livinsr. 


OF    THE    EIGHTS    OF    DESCENDANTS.  49 

of  the  deceased,  deceased  great-grandchildren, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. ^*^ 

(3.)  If  the  deceased  leaves  no  child,  but  leaves 
one  or  more  grandchildren,  the  great-great- 
grandchildren, who  are  not  excluded  by  a  liv- 
ing ancestor  as  above  indicated,  take  or  share 
in,  by  representation,  that  portion  which  their 
grandparent  (a  grandchild  of  the  deceased) 
would  have  taken  if  living;  which  would  be 
such  portion  of  the  personal  estate  as  would 
have  come  to  their  grandparent  upon  the  equal 
division  of  all  or  two-thirds,  as  the  case  may  be, 
among  the  grandchildren  of  the  deceased,  de- 
ceased grandchildren,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division 
as  themselves  living.^^ 

(4.)  If  the  deceased  leaves  one  or  more  children, 
the  great-great-grandchildren,  who  are  not  ex- 
cluded by  a  living  ancestor  as  above  indicated, 
take  or  share  in,  by  representation,  that  por- 
tion which  their  great-grandparent  (a  child  of 
the  deceased)  would  have  taken  if  living;  which 
would  ])e  such  portion  of  the  personal  estate 

40  See  also  p.  43,  §  6,  subd.  1. 

41  See  also  p.  40,  §  4,  subd.  1. 

4: 


50  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

as  would  have  come  to  their  great-grandparent 
upon  the  equal  division  of  all  or  two-thirds,  as 
the  case  may  be,  among  the  children  of  the  de- 
ceased, deceased  children,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of 
division  as  themselves  living.'*^ 

42  See  also  p.  39,  §  2, 


CHAPTER  V. 

OF  THE  RIGHTS  OF  ANCESTORS. 

§   1.  Father  takes  Real  Estate. 

2.  Father  takes  Personal  Estate. 

3.  Mother  takes  Real  Estate. 

4.  Mother   takes    Personal    Estate. 

5.  Grandparents  take  Personal  Estate  only. 

6.  Great-grandparents  take  Personal  Estate  only. 

7.  Great-great-grandparents   take   Personal   Estate   only. 

§  1.  Father  takes  Real  Estate. —  If  the  deceased 
leaves  a  widow,  the  real  estate  is  taken  subject  to 
her  rights.^  If  the  deceased  leaves  a  husband  to 
whom  a  child  was  born  alive,  the  real  estate  is  taken 
subject  to  his  right  of  curtesy.^ 

If  a  son  dies  without  a  lawful  descendant,  the 
father  inherits  all  the  real  estate  except  that  which 
may  have  come  to  the  deceased  on  the  part  of  his 
mother.^  If  a  daughter  dies  leaving  neither  a  law- 
ful descendant  nor  an  illegitimate  child,  the  father 
inherits  in  like  manner.'* 

Where  real  estate  came  to  the  deceased  on  the  part 

1  For  the  rights  of  a  widow  see  Widow,  p.  30,  §  1. 

2  See  Husband,  p.  35,  §  3. 

3  R.  P.  Law,  §  284.  As  to  what  property  is  said  to  have 
come  to  the  deceased  on  the  part  of  the  mother,  see  ante,  p.  28. 

4  R.  P.  Law,  §  284. 

[51] 


62  INTESTATE    SUCCESSION    IN    NEW    YORK. 

of  a  deceased  mother,^  the  father  takes  all  for  life  if 
the  deceased  leaves  any  brother  or  sister,  or  descend- 
ant of  either  f  otherwise  he  takes  all  in  fee.' 

§  2.  Father  takes  Personal  Estate. — A  father  takes 
no  portion  of  the  personal  estate  of  a  deceased  child 
if  such  deceased  leaves  any  descendant  or  husband.^ 
Where  the  father  is  not  thus  excluded,  he  takes  one- 
half  if  there  be  a  widow ;  otherwise  all.^ 

§  3.  Mother  takes  Real  Estate. —  If  the  deceased 
leaves  a  widow,  the  real  estate  is  taken  subject  to  her 
rights.^^  If  the  deceased  leaves  a  husband,  to  whom 
a  child  was  bom  alive,  the  real  estate  is  taken  sub- 
ject to  his  right  of  curtesj.^^ 

A  mother  inherits  no  portion  of  the  real  estate  of 
a  deceased  son  where  such  deceased  leaves  any  law- 
ful descendants.^^.  She  likewise  inherits  no  portion  of 
the  real  estate  of  a  deceased  daughter  where  such 
deceased  leaves  any  lawful  descendant  or  illegiti- 
mate child.^^ 

5  As  to  when  property  is  said  to  have  come  to  a  deceased  on 
the  part  of  father  or  mother,  see  p.  28. 

6  Morris  r.  Ward,  36  N.  Y.  587. 

7  R.  P.  Law,  §  284. 

8  See  authorities  cited  under  Husband,  p.  35. 

9  Code,  §  2732,  subd.  7  ;  Faring  r.  Coles.  2  Bradf.  349. 

10  For  the  rights  of  a  widow,  see  Widow,  p.  30,  §  1. 

11  See  Husband,  p.  35. 

12  R.  P.  Law,  §  285. 

13  R.  P.  Law,  §  285. 


OF  THE  RIGHTS  OF  ANCESTORS.  06 

If  the  father  is  living,  the  mother  inherits  no  por- 
tion of  the  real  estate,  unless  the  inheritance  came 
to  the  deceased  on  the  part  of  the  mother,^'*  or*  the 
father  is  incapable  of  inheriting,  as  by  reason  of  alien- 
age or  the  like.^^ 

If  the  inheritance  came  to  the  deceased  on  the  part 
of  the  mother,  or  if  the  father  be  dead,  or  if  living 
is  incapable  of  inheriting,  the  mother  takes  a  life 
estate  if  the  deceased  leaves  a  brother  or  sister,  or 
descendant  of  either ;  otherwise  she  takes  all  in  f ee.^^ 

§  4.  Mother  takes  Personal  Estate. — A  mother  takes 
no  portion  of  the  personal  estate  of  a  deceased  child 
where  such  deceased  leaves  any  descendant, ^^  hus- 
band,^^  or  father/^     ^\Tiere  the  mother  is  not  ex- 

14  As  to  Avhat  property  is  said  to  have  come  to  the  deceased 
on  the  part  of  the  mother,  see  p.  28. 

15  R.  P.  Law,  §§  284.  285. 

16  R.  P.  Law,  §  28.5 ;  Miller  r.  Macomb,  26  Wend.  230 ;  Tilton 
r.  Vail,  17  Civ.  Pro.  R.  194.  The  same  is  true  where  the  de- 
ceased leaves  brothers  and  sisters  of  the  half-blood,  not  of 
the  blood  of  the  ancestor  from  whom  the  inheritance  came  to 
the  deceased.  Conkling  v.  Brown,  8  Abb.  Pr.  N.  S.  345 ; 
s.  c,  57  Barb.  265. 

17  Code  Civ.  Pro.  §  2732,  snbds.  7,  8. 

18  Id.;  Vallance  r.  Bausch,  8  Abb.  Pr.  368;  s.  c,  28  Barb. 
G33;  17  How.  Pr.  243.  Approved  in  Ransom  v.  Nichols,  22 
X.  Y.  113,  and  see  Husband,  p.  36. 

19  Code  Civ.  Pro.  §  2732,  subds.  7,  8. 


Ol-  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

eluded  as  above,  she  takes  or  shares  in  the  personal 
estate  of  the  deceased  as  follows  :^^ 

(1.)  If  the  deceased  leaves  a  widow,  one-half  of 
the  personal  estate  is  distributable  in  equal 
shares  to  the  mother,  and  brothers  and  sisters,* 
the  representatives  ^^  of  deceased  brothers  or 
sisters  taking  the  share  their  parent  would  have 
taken  if  living. 

(2.)  If  the  deceased  leaves  no  widow,  the  whole 
is  distributable  in  the  same  manner. 

(3.)  If  the  deceased  leaves  no  brother,  sister,  or 
descendant  of  a  brother  or  sister,^^  the  mother 
takes  one-half  if  the  deceased  leaves  a  widow ; 
otherwise  all. 

(4.)  If  the  deceased  was  an  illegitimate  and  leaves 
no  widow,  the  mother  takes  all.^^ 

§  5.  Grandparents  take  Personal  Estate  only. — 
Grandparents  are  incapable  of  inheriting  real  estate.^^ 

Grandparents  take  no  portion  of  the  personal  es- 
tate of  a  deceased,  if  such  deceased  leaves  any  de- 

20  Code  Civ.  Pro.  §  2732,  subds.  6,  8. 

*  Matter  of  Cruger,  68  N.  Y.  St.  R.  241 ;  34  N.  Y.  Supp.  101. 

21  Code,  §  2732,  subd.  5 ;  Doughty  v.  Stilwell.  1  Bradf .  300. 

22  Id.,  subd.  5. 

23  Code  Civ.  Pro.  §  2732,  subd.  9.     See  also  ante,  p.  17. 

24  2  Bl.  Com.  208;  R.  P.  Law,  §  291. 


To  face  page  54  Remsen  on  Intestate  Succession,  4th  Edition. 

Grandparents  take  Real  Estate. —  By  an  Act  (L.  1004. 
eh.  106)  which  was  passed  and  took  effect  after  this  book  was 
printed,  March  22,  1904,  a  new  subdivision  was  added  to  §  288 
of  Real  Property  Law,  whereby  grandparents  are  now  enablfd 
to  inherit  real  estate.     That  subdivision  reads  as  follows: 

§  288,  subd.  "  5.  If  there  be  no  such  brothers  or  sisters  of 
.such  father  or  mother,  nor  any  descendants  of  such  brotliern 
or  sisters,  the  inheritance,  if  it  shall  have  come  to  the  intestate 
on  the  part  of  his  father,  shall  descend  to  his  father's  parents, 
then  living,  in  equal  parts,  and  if  they  be  dead,  then  to  his 
mother's  parents,  then  living,  in  equal  parts;  but  if  the  in- 
heritance shall  have  come  to  the  intestate  on  the  part  of  his 
mother,  it  shall  descend  to  his  mother's  parents,  then  living, 
in  equal  parts,  and  if  they  be  dead,  to  his  father's  parente, 
then  living,  in  equal  parts.  If  the  inheritance  has  not  come 
to  the  intestate  on  the  part  of  either  father  or  mother,  it  shall 
descend  to  his  living  grandparents  in  equal  parts." 

By  the  foregoing  amendment  a  living  grandparent  exclud«-K 
great-uncles  and  aunts,  children  of  great-uncles  and  aunts, 
second  cousins,  children  of  second  cousins,  great-great  uncles 
and  aunts,  children  of  great-great  uncles  and  aunts,  grantl- 
filiildren  of  great-great  uncles  and  aunts  and  third  cousins. 


OF  THE  KIGHTS  OF  ANCESTORS.  55 

scendant,'^    husband,"*'    widow,^^    parent,^^    brother, 
sister,^  or  descendant  of  a  brother  or  sister.^" 

Where  the  grandparents  are  not  excluded  as  above, 
they  take  all  in  equal  portions.^^ 

§  6.  Great-grandparents  take  Personal  Estate  only. 
—  Great-grandparents  are  incapable  of  inheriting 
real  estate.^^ 

Great-grandparents  take  no  portion  of  the  personal 
estate  of  a  deceased,  if  such  deceased  leaves  any  de- 
scendant, husband,  widows,  parent,  grandparent, 
brother,  sister,^^  or  descendant  of  brother  or  sister.^* 

Where  great-grandparents  are  not  excluded,  as 
above,  they  take  or  share  all  the  personal  estate  of  the 
deceased,  in  equal  portions  per  capita,  with  such 
uncles  and  aunts  as  may  be  living,^^  deceased  uncles 

25  Code  Civ.  Pro.  §  2732,  subds.  1-5. 

26  See  authorities  in  notes  under  Husband  takes  Personal 
Estate,  p.  36. 

27  Code  Civ.  Pro.  §  2732,  subd.  3. 

28  Code  Civ.  Pro.   §   2732,  subds.  7,  8. 

29  It  has  been  decided  that  brothers  and  sisters  take  to  the 
exclusion  of  grandparents.     Matter  of  Marsh,  5  Misc.  428. 

30  Code  Civ.  Pro.  §  2732,  subd.  5. 

31  Bogert  V.  Furinan,  10  Paige  Ch.  496;  Sweezey  ?'.  Willis, 
1  Bradf.  495;  Hurtin  v.  Proal,  3  Bradf.  414;  Hill  v.  Nye,  17 
Hun,  457. 

32  2  Bl.  Com.  208;  R.  P.  Law,  §  291. 

33  See  notes  under  head  of  the  various  relatives  named. 

34  Code  Civ.  Pro.  §  2732.  subds.  5,  10,  12. 

35  Code  Civ.  Pro.  §  2732,  subds.  5,  10.  12. 


56  INTESTATE    SUCCESSION    IN    NEW    YORK. 


and  aunts  who  have  descendants  living,  being  counted 


for  the  purpose  of  division  as  themselves  living, 


36 


§  7.  Great-great-grandparents  take  Personal  Estate 
only. —  Great-great-grandparents  are  incapable  of  in- 
heriting real  estate.^^ 

Great-great-grandparents  take  no  portion  of  the 
personal  estate  of  a  deceased,  if  such  deceased  leaves 
any  descendant,  husband,  widow,  parent,  grandpar- 
ent, great-grandparent,  brother,  sister,  descendant  of 
a  brother  or  sister,  uncle,  aunt,^^  or  descendant  of 
uncle  or  aunt.^'' 

Where  great-great-grandparents  are  not  excluded  as 
above,  they  take  or  share  all  the  personal  estate  of 
the  deceased,  in  equal  portions  per  capita,  with  such 
great  uncles,  great  aunts  of  the  deceased  as  may  be  liv- 
ing, deceased  great  uncles  and  great  aunts  who  have 
descendants  living  being  counted  for  the  purpose  of 
division  as  themselves  living.^*' 

36  Id. 
•      37  2  Bl.  Com.  208:  R.  P.  Law,  §  291. 

38  See  notes  under  the  head  of  the  varioous  relatives  named. 

39  Code  Civ.  Pro.  §  2732,  subds.  5,  10,  12. 

40  Id. 


CHAPTER  VI. 

OF  THE  EIC4HTS  OF  BROTHERS  AND  SISTERS  AND 
THEIR  DESCENDANTS. 

§   1.  Brothers  and  sisters  take  Real  Estate. 

2.  Brothers  and  sisters  take  Personal  Estate. 

3.  Nephews  and  nieces  take  Real  Estate. 

4.  Nephews  and  nieces  take  Personal  Estate. 

5.  Grandnephews  and  nieces  take  Real  Estate. 

6.  Grandnephews  and  nieces  take  Personal  Estate. 

7.  Great-grandnephews  and  nieces  take  Real  Estate. 

8.  Great-grandnephews  and  nieces  take  Personal  Estate. 

§  1.  Brothers  and  Sisters  take  Real  Estate. —  Broth- 
ers and  sisters^  inherit  no  portion  of  the  real  estate 
of  the  deceased,  where  such  deceased  leaves  any  de- 
scendant.^ ]^either  can  they  inherit  where  the  de- 
ceased leaves  a  father:  except  (1st)  where  the  inheri- 
tance came  to  the  deceased  on  the  part  of  his  mother, 
or  (2d)  when  the  father  is  incapable  of  inheriting, 
as  from  alienage  or  the  like.^  In  the  first  case,  if  the 
mother  be  dead,  the  brothers  and  sisters  inherit  sub- 
ject to  the  life  estate  of  the  father.*  In  either  case, 
if  the  mother  be  living,  they  inherit  subject  to  her  life 
estate.^     In  all  cases,  if  the  father  be  dead  and  the 

1  In  case  of  half-blood,  see  ante,  p.  16. 

2R.  P.  Law,  §§  281-284. 

3R.  P.  Law,  §§  284,  285. 

4R.  P.  Law,  §§  284,  288;  Morris  V.  Ward,  36  N.  Y.  587. 

5R.  P.  Law,  §  285. 

[57] 


58  INTESTATE    SUCCESSION    IN    NEW    YORK. 

mother  be  living,  brothers  and  sisters  take  subject  to 
her  life  estate.*^  If  the  deceased  leaves  a  widow,  the 
real  estate  is  taken  subject  to  her  rights.^  If  the  de- 
ceased leaves  a  husband,  to  whom  a  child  was  born 
alive,  the  real  estate  is  taken  subject  to  his  right  of 
curtesy.^ 

Where  brothers  and  sisters  are  not  excluded  from 
the  inheritance,  as  above,  they  ^  take  all  the  real  es- 
tate ^^  (perhaps  subject  to  a  life  estate  above  men- 
tioned) in  equal  portions,  deceased  brothers  and  sis- 
ters who  have  descendants  living  being  counted  for 
the  purpose  of  division  as  themselves  living.  ^^ 

§  2.  Brothers  and  Sisters  take  Personal  Estate — 
Brothers  and  sisters  take  no  portion  of  the  personal 

6  Id.;  Barber  v.  Brundage,  169  N.  Y.  368. 

7  For  the  rights  of  a  widow  see  Widow,  p.  30,  §  1. 

8  See  Husband,  p.  35. 

8  Whether  brothers  and  sisters  of  the  whole  or  half-blood, 
but  if  the  inheritance  came  to  the  deceased  on  the  part  of 
either  father  or  mother,  the  half  blood  is  excluded,  except  it 
be  that  of  the  ancestor  on  the  part  of  whom  the  estate  came 
to  the  intestate.     R.  P.  Law,  §  290.     See  also  ante,  p.  16. 

10  The  common-law  rule  of  inheritance,  directly  from  a 
brother  or  sister  —  not  through  the  father  —  is  confirmed  by 
R.  P.  Law,  §§  286,  287,  which  provide  for  descent  between 
brothers  and  sisters  if  there  be  no  parent  "  capable  of  in- 
heriting." Luhrs  V.  Eimer,  80  N.  Y.  171;  aff'g  15  Hun,  399; 
s.  p..  Smith  V.  Mulligan,  11  Abb.  Pr.  N.  S.  438. 

11  R.  P.  Law,  §§  286,  287. 


OF   THE   RIGHTS   OF  BROTHERS  AND  SISTERS.        59 

estate  of  a  deceased,  if  the  deceased  leaves  any  de- 
scendant/^ husband/^  or  father.^^ 

Where  brothers  and  sisters  are  not  excluded,  as 
above,  they  take  or  share  in  the  personal  estate  of  the 
deceased  as  follows: 

(1.)  If  the  deceased  leaves  a  widow  and  mother, 
one-half  is  distributable  in  equal  shares  to  the 
mother  and  brothers  and  sisters ;  the  representa- 
tives ^^  of  deceased  brothers  and  sisters  taking 
the  share  their  parent  would  have  taken  if 
living.^^ 

(2.)  If  the  deceased  leaves  a  mother  and  no 
widow,  all  is  distributable  in  like  manner.^^ 

(3.)  If  the  deceased  leaves  a  widow  but  no  mother, 
all  that  may  remain  of  one-half,  after  deducting 
two  thousand  dollars,  is  distributable  in  equal 
shares  to  the  brothers  and  sisters ;  the  represen- 

12  Code  Civ.  Pro.  §  2732,  subd.  1,  4. 

13  Fry  V.  Smith,  10  Abb.  X.  C.  224 ;  distinguishing  Kearney 
r.  Missionary  Soe.  of  St.  Paul,  Id.  274.  See  Husband,  ante, 
p.  36,  §  4. 

14  Harring  v.  Coles,  2  Bradf.  349 ;  Code,  §  2732,  subd.  7. 

15  Code  Civ.  Pro.  §  2732,  subd.  5;  Matter  of  Davenport,  172 
X.  Y.  454. 

16  Id.  subd.  6. 

17  Id.  subd.  6. 


60  INTESTATE    SUCCESSION    IN    NEW    YORK. 

tatives  ^®  of  deceased  brothers  and  sisters  taking 
the  share  their  parent  would  have  taken  if 
living.  ^^ 

(4.)   If  the  deceased  leaves  no  widow  or  mother, 
all  is  distributable  in  the  same  manner."^ 

§  3.  Nephews  and  Nieces  take  Real  Estate. —  Neph- 
ews and  nieces  take  no  portion  of  the  real  estate  of 
a  deceased,  where  such  deceased  leaves  any  descend- 
ant.* I^either  can  nephews  and  nieces  inherit  if 
their  parent  (being  a  brother  or  sister  of  the  de- 
ceased) be  living.^^  Neither  can  they  inherit  if  the 
deceased  leaves  a  father;  except  (1st)  where  the  in- 
heritance came  to  the  deceased  on  the  part  of  the 
mother;  or  (2)  where  the  father  is  incapable  of  in- 
heriting, as  from  alienage  or  the  like.^  In  the  first 
case,  if  the  mother  be  dead,  nephews  and  nieces,  who 
are  not  excluded  as  above,  inherit  subject  to  the  life 
estate  of  the  father.^^  In  either  case,  if  the  mother 
be  living,  they,  if  not  excluded  as  above,  inherit  sub- 
is  Code  Civ.  Pro.  §  2732,  subd.  5;  Matter  of  Davenport,  172 
N.  Y.  454. 

19  Code  Civ.  Pro.  §  2732,  subds.  3,  5. 

20  Code  Civ.  Pro.  §  2732,  subd.  5;  Matter  of  Marsh,  (Surr. 
Ct.  Cattaraugus  Co.)  ,5  Misc.  428, 

*  R.  P.  Law,  §§  281,  282. 

21  Id.  §§  286,  287. 

22  R.  P.  Law,  §§  284.  285. 

23  Id.  §  284. 


OF  TilE   KIGIITS   OF  BEOTHEES  AND  SISTEES.        Gl 

ject  to  her  life  estate.^'*  In  all  cases,  if  the  father  be 
dead  and  the  mother  be  living,  nephews  and  nieces, 
who  are  not  excluded  as  above,  inherit  subject  to  her 
life  estate.^  If  the  deceased  leaves  a  widow,  the 
real  estate  is  taken  subject  to  her  rights."^  If  the 
deceased  leaves  a  husband  to  whom  a  child  was  bom 
alive,  the  real  estate  is  taken  subject  to  the  husband's 
right  of  curtesy.^^ 

Where  nephews  and  nieces  are  not  excluded  from 
the  inheritance  as  above,  they  inherit  as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  brother  or  sister, 
the  nephews  and  nieces  take  all  the  real  estate 
(perhaps  subject  to  a  life  estate  above  men- 
tioned) in  equal  portions,^  deceased  nephews 
and  nieces,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(2.)  If  the  deceased  leaves  a  brother  or  sister,  the 
nephews  and  nieces,  who  are  children  of  a  de- 
ceased brother  or  sister,  take  in  equal  portions^^ 

24  Id.  §  285. 

25  1(1.   §   285. 

26  For  the  rights  of  a  widow  see  Widow,  p.  30,  §  1. 

27  See  Husband,  p.  35. 

28  R.  p.  Law,  §§  286,  287. 

29  Adams  v.  Smith,  20  Abb.  N.  C.  60. 

30  Deceased  nephews  and  nieces,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 


62  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

(perhaps  subject  to  a  life  estate  above  men- 
tioned) the  share  their  deceased  parent  would 
have  taken  if  living;  which  ^vould  be  such  por- 
tion as  would  have  come  to  their  parent  upon 
the  equal  division  of  the  real  estate  among  the 
brothers  and  sisters  of  the  deceased,  deceased 
brothers  and  sisters,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division 
as  themselves  living. 

§  4.  Nephews  and  Nieces  take  Personal  Estate 

N^ephews  and  nieces  take  no  portion  of  the  personal 
estate  of  a  deceased,  if  the  deceased  leaves  any  de- 
scendant,^^ husband,^^  or  father.^^  J^either  can 
nephews  and  nieces  take  if  their  parent  (being  a 
brother  or  sister  of  the  deceased)  be  living. ^^ 

Where  nephews  and  nieces  are  not  excluded  as 
above,  they  take  or  share  in  the  personal  estate  as 
f  ollo"ws : 

(1.)  If  the  deceased  leaves  a  widow,  mother,  and 
a  brother  or  sister,  the  nephews  and  nieces,  Avho 
are  children  of  a  deceased  brother  or  sister,  take 

31  Code,  §  2732,  subds.  1.  3,  4,  5. 

32  See  authorities  cited  in  notes  under  Husband  —  Personal 
Estate,  p.  36. 

33  Code,    §   2732,   subd.    7. 

34  For  they  are  neither  next  of  kin,  nor  do  they  represent 
their  parent. 


OF  THE   RIGHTS   OF   BROTHEES  AND  SISTERS.        03 

in  equal  portions^  the  share  their  parent  would 
have  taken  if  living;  which  would  be  such  por- 
tion of  one-half  of  the  personal  estate  as  would 
come  to  their  parent  upon  the  division  of  the 
same,  in  equal  shares,  among  the  mother,  and 
brothers  and  sisters,  deceased  brothers  and  sis- 
ters, who  have  one  or  more  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living.^® 

(2.)  If  the  deceased  leaves  a  mother  and  a  brother 
or  sister,  but  no  widow,  all  is  distributable  in 
like  manner.^^ 

(3.)  If  the  deceased  leaves  a  widow  and  mother, 
but  no  brother  or  sister,  one-half  is  distributable 
in  equal  shares  to  the  mother  and  representa- 
tives of  deceased  brothers  and  sisters,  who  are 
nephews  and  nieces,  deceased  nephews  and 
nieces,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living.^® 

35  Deceased  nephews  and  nieces,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 
living. 

36  Code,  §  2732,  subd.  6. 

37  Id. 

38  Code,  §  2732,  subds.  5,  12.  See  Matter  of  Davenport,  172 
N.  Y.  454,  alT'g  67  App.  Div.  191.  It  is  assumed  that  the 
Matter  of  Davenport,  will  not  be  followed  or  will  be  limited 


64  I^"TESTATE    SUCCESSION    IX    XEW    YOEK. 

(4.)  If  the  deceased  leaves  a  mother  but  no 
brother,  sister  or  wido^u',  all  is  distributable  in 
the  same  manner.^ 

(5.)  If  the  deceased  leaves  a  widow  and  brother 
or  sister,  bur  uo  mother,  the  nephews  and  nieces, 
who  are  children  of  a  deceased  brother  or  sister, 
take  in  equal  portions'**^  the  share  their  parent 
would  have  taken  if  living ;  which  would  be 
such  portion  of  one-half,  less  two  thousand  dol- 
lars (if  any  remain)  as  would  come  to  their 
parent  upon  the  equal  division  of  the  same  per 
capita  among  the  brothers  and  sisters,  deceased 
brothers  and  sisters,  who  have  one  or  more  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living.'*^ 

(6. )   If  the  deceased  leaves  a  widow  but  no  brother, 

or  distinguished  in  subsequent  litigation.  A  discussion  of 
the  reasons  for  such  a  belief  would  be  too  voluminous  for  this 
note.  It  is  sufficient  here  to  say  that  any  other  course  ■vrill 
render  the  law  of  intestate  succession  verj-  unsettled  and  the 
statute  as  to  collaterals  incomprehensible.  Be-sides  the  re- 
cent amendment  of  subdivision  5  (see  appendix  B)  furnishes 
an  important  element  not  present  in  the  above-mentioned  case. 
See  also  Matter  of  Tliompson.  41  Misc.  223. 

39  Id. 

40  Deceased  nephews  and  nieces,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 
living. 

41  Code.  §  27.32,  subds.  1-.5. 


OF  THE  EIGHTS   OF  BEOTHEES  AND  SISTEES.       05 

sister  or  mother,  the  nephews  and  nieces  take  in 
equal  portions^  all  that  may  remain  of  one- 
half,  if  anv,  after  deducting  two  thousand  dol- 
lars.^ 

(7.)  If  the  deceased  leaves  a  brother  or  sister  but 
no  widow  or  mother,  the  nephews  and  nieces, 
who  are  children  of  a  deceased  brother  or  sister, 
take  in  equal  portions**  the  share  their  parent 
would  have  taken  if  living;  which,  would  be 
such  portion  of  the  whole  as  would  come  to  the 
parent  upon  the  equal  division  of  the  same  per 
capita  among  the  brothers  and  sisters,  deceased 
brothers  and  sisters,  who  have  one  or  more 
descendants  living,  being  counted  for  the  purpose 
of  division  as  themselves  living.*^ 

(8.)  If  the  deceased  leaves  no  brother,  sister, 
Avidow  or  mother,  all  is  distributable  in  equal 
portions  per  capita  between  the  nephews*^  and 
nieces,  deceased  nephews  and  nieces,  who  have 

*2  See  note  40. 

43  Code  Civ.  Pro.  §  2732.  subd.  3. 

44  Deceased  nephews  and  nieces,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as  themselves 
living. 

45  Code.  §  2732,  subd.  5. 

46Hurtin  r.  Proal.  3  Bradf.  414:  Fletcher  v.  Severs,  30  N.  Y. 
St.  R.  826. 


60  INTESTATE    SUCCESSION    IN    NEW    YORK. 

descendants  living,  being  counted  for  the  purpose 
of  division  as  themselves  living.^^ 

§  5.  Grandnephews  and  Grandnieces  take  Real  Es- 
tate.—  Grandnephews  and  grandnieces  take  no  por- 
tion of  the  real  estate  of  a  deceased  where  such  de- 
ceased leaves  any  descendant.^^  Xeither  can  grand- 
nephews  or  grandnieces  inherit  if  their  parent  (being 
a  nephew  or  niece  of  the  deceased)  or  grandparent 
(being  a  brother  or  sister  of  the  deceased)  be  living. ^^ 
Neither  can  they  inherit  if  the  deceased  leaves  a 
father;  except  (1st)  where  the  inheritance  came  to 
the  deceased  on  the  part  of  the  mother,^"  or  (2d) 
where  the  father  is  incapable  of  inheriting,  as  from 
alienage  or  the  like.^^  In  the  first  case,  if  the  mother 
be  dead,  grandnephews  and  grandnieces,  who  are  not 
excluded  as  above,  inherit  subject  to  the  life  estate 
of  the  father. ^^  In  either  case,  if  the  mother  be  liv- 
ing, they,  if  not  excluded  as  above,  inherit  subject  to 
her  life  estate.^^  In  all  cases  if  the  father  be  dead 
and  the  mother  be  living,  grandnephews  and  grand- 
nieces,  who  are  not  excluded  as  above,  inherit  subject 

47  See  note  38. 

48  R.  P.  Law,  §§  281,  282. 

49  R.  P.  Law,  §§  286,  287. 

50  R.  P.  Law.  §  285.     As  to  what  property  is  said  to  have 
come  to  the  deceased  on  the  part  of  the  mother,  see  p.  28. 

51  R.  P.  Law,  §§  284,  285. 

52  Id. 

53  Id. 


OF  THE  RIGHTS   OF  BROTHERS  AND  SISTERS.        67 

to  the  mother's  life  estate. ^^  If  the  deceased  leaves 
a  widow,  the  real  estate  is  taken  subject  to  her 
rights.^^  If  the  deceased  leaves  a  husband,  to  whom 
a  child  was  born  alive,  the  real  estate  is  taken  subject 
to  the  husband's  right  of  curtesy.^^ 

Where  grandnephews  and  grandnieces  are  not  ex- 
cluded from  the  inheritance  as  above,  they  inherit  as 
follows  :^^ 

(1.)  If  the  deceased  leaves  no  brother,  sister, 
nephew  or  niece,  the  grandnephews  and  grand- 
nieces  inherit  all  the  real  estate  (perhaps  sub- 
ject to  a  life  estate  above  mentioned)  in  equal 
portions ;  deceased  grandnephews  and  grand- 
nieces,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living. 

(2.)  If  the  deceased  leaves  a  nephew  or  niece,  but 
no  brother  or  sister,  the  grandnephews  and 
grandnieces,  who  are  children  of  a  deceased 
nephew  or  niece,  take  in  equal  portions^^  (per- 

54  R.  p.  Law,  §  285. 

55  For  the  rights  of  a  widow,  see  Widow,  p.  30,  §  1. 

56  See  Husband,  p.  35. 

57  R.  P.  Law,  §§  28<5,  287. 

5S  Deceased  grandnephews  and  grandnieces,  who  have  de- 
scendants living,  being  counted  for  the  purpose  of  division  as 
themselves  living. 


68  INTESTATE    SUCCESSION    IN    NEW    YORK, 

liaps  subject  to  a  life  estate  above  mentioned) 
the  share  their  parent  would  have  taken  if  liv- 
ing, which  would  be  such  a  portion  as  would 
come  to  their  parent  upon  the  equal  division  of 
the  real  estate  among  the  nephews  and  nieces ; 
deceased  nephews  and  nieces,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of 
division  as  themselves  living. 

(3.)  If  the  deceased  leaves  a  brother  or  sister,  the 
grandnephews  and  grandnieces,  who  are  not  ex- 
cluded by  a  living  ancestor  as  above,  take  by 
representation  (perhaps  subject  to  a  life  estate 
above  mentioned)  the  portion  their  grandparent 
would  have  taken  if  living,  wdiich  would  be  such 
portion  as  would  come  to  such  grandparent  upon 
the  equal  division  of  the  real  estate  among  the 
brothers  and  sisters  of  the  deceased ;  deceased 
brothers  and  sisters,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division 
as  themselves  living. 

§  6.  Grandnephews  and  Grandnieces  take  Personal 
Estate. —  Grandnephews  and  grandnieces  take  no  por- 
tion of  the  personal  estate  of  the  deceased  if  such 
deceased    leaves    any    descendant,^^    husband,^'"    or 


f>9  Code,  §  2732,  subds.  1-5. 

CO  Code  Civ.  Pro.  §  2732,  and  cases  cited  in  notes  under  Hus- 
band — •  Personal  Estate,  p.  35. 

61  Code,  §  2732,  subd.  7.  • 


OF   TilE   KIGIITS    OF   BROTIIEKS   AXD   SISTERS.        60 

Xeither  can  grandnephews  and  grandnieces  take 
if  tlioir  parent  (being  a  nephew  or  niece)  or  a  grand- 
})arent  (being  a  brother  or  sister  of  deceased)  be 
living. 

They  are  also  excluded  if  the  deceased  leaves  a 
widow  and  no  mother,  brother,  sister,  nephew  or 
niece.  ^^ 

Where  grandnephews  and  grandnieces  are  not  ex- 
cluded as  above  they  take  or  share  in  the  personal 
estate  (which  does  not  go  to  a  surviving  widow  or 
mother)  the  same  as  if  it  were  real  estate.^^  See 
p.  G7. 

§  7.  Great-grandnephews     and     Great-grandnieces 

take  Real  Estate. —  Great-grandnephews  and  great- 
grandnieces  take  no  portion  of  the  real  estate  of  a 
deceased,  where  such  deceased  leaves  any  descend- 
ant.^ Neither  can  great-grandnephews  or  great- 
grandnieces  inherit  if  their  parent  (being  a  grand- 
nephew  or  grandniece  of  the  deceased),  grandparent 
(being  a  nephew  or  niece  of  the  deceased)  or  great- 
grandparent  (being  a  brother  or  sister  of  the  de- 
ceased) be  living. ^^  Neither  can  they  inherit  if  the 
deceased  leaves  a  father,  except  (1st)  where  the  in- 

e2  Code,  §  2732,  subd.  3. 

63  Code,  §  2732,  subd.  5.    See  note  38. 

64  R.  P.  Law,  §§  281,  282. 
cr<K.  P.  Law,  §§  286,  287. 


70  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

heritance  came  to  the  deceased  on  the  part  of  the 
mother ;^^  or  (2d)  where  the  father  is  incapable  of 
inheriting,  as  from  alienage  or  the  like.^"  In  the  first 
case,  if  the  mother  be  dead,  great-grandnephews  and 
great-grandnieces,  who  are  not  excluded  as  above,  in- 
herit subject  to  the  life  estate  of  the  father. ^^  In 
either  case,  if  the  mother  be  living,  they  inherit 
subject  to  her  life  estate.^^  In  all  cases,  if  the  mother 
be  living  and  the  father  be  dead,  great-grandnephews 
and  great-grandnieces,  who  are  not  excluded  as  above, 
take  subject  to  the  mother's  life  estate."'^  If  the  de- 
ceased leaves  a  widow,  the  real  estate  is  taken  subject 
to  her  rights. ^^  If  the  deceased  leaves  a  husband,  to 
whom  a  child  was  born  alive,  the  real  estate  is  taken 
subject  to  his  right  of  curtesy. ^^ 

Where  great-grandnephews  and  great-grandnieces 
are  not  excluded  from  the  inheritance  as  above,  they 
inherit  as  follows  :^^ 

(1.)   If   the    deceased   leaves   no    brother,    sister, 
nephew,  niece,  grandnephew  or  grandniece,  the 

66  As  to  what  property  is  said  to  have  come  to  a  deceased  on 
the  part  of  his  mother,  see  p.  28. 

67  R.  p.  Law,  §§  284,  285. 

68  Id. 

69  Id. 

70  Id. 

71  For  the  rights  of  a  widow,   see  Widow,  p.  30,  §  1. 

72  See  Husband,  p.  35. 

73  R.  P.  Law,  §§  286,  287. 


OF  THE   RIGHTS   OF  BROTHERS  AND  SISTERS.       71 

great-grandnephews  and  great-grandnieces  in- 
herit all  the  real  estate  (perhaps  subject  to  a 
life  estate  above  mentioned)  in  equal  portions, 
deceased  great-grandnephews  and  great-grand- 
nieces,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(2.)  If  the  deceased  leaves  a  grandnephew,  or  a 
grandniece,  but  no  nephew,  niece,  brother  or 
sister,  the  great-grandnephews  and  great-grand- 
nieces,  who  are  children  of  a  deceased  grand- 
nephew  or  grandniece,  take  in  equal  portions  '■* 
(perhaps  subject  to  a  life  estate  above  men- 
tioned) the  share  their  parent  would  have  taken 
if  living;  which  would  be  such  portion  as  would 
come  to  their  parent  upon  the  equal  division  of 
the  real  estate  among  the  grandnephews  and 
grandnieces  of  the  deceased,  deceased  grand- 
nephews  and  grandnieces,  wdio  have  descendants 
livng,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

(3.)  If  the  deceased  leaves  a  nephew  or  niece,  but 
no  brother  or  sister,  the  great-grandnephews  and 
great-grandnieces,  who  are  not  excluded  by  a 

'4  Deceased  great-grandnephews  and  great-grandnieces,  who 
have  descendants  living,  being  counted  for  the  purpose  of  di- 
vision as  themselves  living. 


72  INTESTATE    SUCCESSION    IN    NEW    YORK. 

living  ancestor  as  above,  take  or  share  in  by 
representation  (perhaps  subject  to  a  life  estate 
above  mentioned)  the  portion  their  grandparent 
(being  a  nephew  or  niece  of  the  deceased)  would 
have  taken  if  living;  which  would  be  such  por- 
tion as  would  come  to  their  grandparent  upon 
the  equal  division  of  the  real  estate  among  the 
nephews  and  nieces,  deceased  nephews  and 
nieces,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(4.)  If  the  deceased  leaves  a  brother  or  sister,  the 
great-grandnephews  and  great-grandnieces,  who 
are  not  excluded  by  a  living  ancestor  as  above, 
take  or  share  in  by  representation  (perhaps  sub- 
ject to  a  life  estate  above  mentioned)  the  portion 
their  great-grandparent  (being  a  brother  or  sister 
of  the  deceased)  would  have  taken  if  living, 
which  would  be  such  portion  as  would  come  to 
their  great-grandparent  upon  an  equal  division 
of  the  real  estate  among  the  brothers  and  sisters 
of  the  deceased,  deceased  brothers  and  sisters, 
Avho  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

§  8.  Great-grandnephews  and  Great-grandnieces  take 
Personal  Estate. —  Great-grandnephews  and  great- 
grandnieces  take  no  portion  of  the  personal  estate  of  a 


OF   THE   EIGHTS    OF   BKOTIIEKS   AXD   SISTERS.         i  6 

deceased  if  such  deceased  leaves  any  descendant,  hus- 
band, or  father."^ 

Xeither  can  great-grandnephews  and  great-grand- 
nieces  take  if  their  parent  (being  a  grandncphew  or 
grandniece),  grandparent  (being  a  nephew  or  niece) 
or  a  great-grandparent  (being  a  brother  or  sister  of 
deceased)  be  living. 

They  are  also  excluded  if  the  deceased  leaves  a 
widow  and  no  mother,  brother,  sister,  nephew  or 
niece.  "^ 

Where  great-grandnephews  and  great-grandnieces 
are  not  excluded  as  above  they  take  or  share  in  the 
personal  estate  (which  does  not  go  to  a  surviving 
widow  or  mother)  the  same  as  if  it  were  real  estate. 
See  p.  TO. 

"5  See  notes  under  grandnephews  and  grandnieces. 
76  Code,  §  2732,  subds.  3,  5. 


CHAPTER  VII. 

OF  THE  RIGHTS  OF  UNCLES  AND  AUNTS  AND  THEIR 
DESCENDANTS. 

§  1.  Uncles  and  aunts  take  Real  Estate. 

2.  Uncles  and  aunts  take  Personal  Estate. 

3.  Cousins  take  Real  Estate, 

4.  Cousins  take  Personal  Estate. 

5.  Children  of  cousins  take  Real  Rstate. 

6.  Children  of  cousins  take  Personal  Estate. 

7.  Grandchildren  of  cousins  take  Real  Estate. 

8.  Grandchildren  of  cousins  take  Personal  Estate. 

§  1.  Uncles  and  Aunts  take  Real  Estate. —  Uncles 
and  aunts^  inherit  no  portion  of  the  real  estate  of  a 
deceased  if  such  deceased  leaves  any  descendant, 
parent,  brother,  sister,  or  descendant  of  a  brother  or 
sister.^  If  the  deceased  leaves  a  widow,  the  real  estate 
is  taken  subject  to  her  rights.^  If  the  deceased  leaves 
a  husband,  to  whom  a  child  was  bom  alive,  the  real 
estate  is  taken  subject  to  his  right  of  curtesy.* 

Where  uncles  and  aunts  are  not  excluded  from  the 
inheritance  as  above,   and  the  inheritance  did  not 

1  As  to  the  half-blood,  see  R.  P.  Law,  §  290 :  Beebee  r. 
Griffing,  14  N.  Y.  2.3.5,  and  see  ante,  p.  16.  If  aliens,  see  Leary 
r.  Leary,  50  Hoav.  Pr.   122,   and  atite,  p.    18. 

2R.  P.  Law.  §§  281-288. 

3  For  the  rights  of  a  widow,  see  Widow,  p.  30,  §  1. 

4  See  Husband,  p.  35. 

[74] 


OF   THE  RIGHTS   OF   UXCLES  AND  AUNTS,   ETC.       75 

come  to  the  deceased  on  the  part  of  either  the  father 
or  mother,^  thej  inherit  all  the  real  estate  (perhaps 
subject  to  dower  or  curtesy  above  mentioned)  in  equal 
portions  per  capita;  deceased  uncles  and  aunts,  who 
have  descendants  living,  being  counted  for  the  pur- 
pose of  division  as  themselves  living.^ 

Where  paternal  uncles  and  aunts  are  not  excluded 
as  above,  they  inherit  as  follows  •? 

(1.)  If  the  inheritance  came  to  the  deceased  on 
the  part  of  the  father*  they  inherit  all  such  real 
estate  (perhaps  subject  to  dower  or  curtesy  above 
mentioned)  in  equal  portions;  deceased  paternal 
uncles  and  aunts,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living.^ 

(2.)  If  the  inheritance  came  to  the  deceased  on 
the  part  of  the  mother^^  and  the  deceased  leaves 
no  maternal    uncle  or  aunt,  or    descendant  of 

5  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 
G  R.  P.  Law,  §  288. 

7  Id. 

8  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

a  r^ary  r.  Leary,  50  How.  Pr.  122;  Valentine  v.  Wether  ill,  31 
Barb.  G55. 

10  See  note  8,  above. 


7Q  INTESTATE    SUCCESSION    IN    NEW    YORK. 

either,  the  paternal  uncles  and  aunts  inherit  snch 
real  estate  as  last  above  mentioned. 

Where  maternal  nncles  and  aunts  are  not  excluded 
as  above,  they  inherit  as  follows  :^^ 

(1.)  If  the  inheritance  came  to  the  deceased  on 
the  part  of  the  mother,^^  they  inherit  all  such 
real  estate  (perhaps  subject  to  dower  or  curtesy 
as  above  mentioned)  in  equal  portions;  deceased 
maternal  uncles  and  aunts,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

(2.)  If  the  inheritance  came  to  the  deceased  on 
the  part  of  the  father,^^  and  the  deceased  leaves 
no  paternal  uncle  or  aunt,  or  descendant  of 
either,  the  maternal  uncles  and  aunts  inherit  all 
such  real  est<ate  as  last  above  mentioned. 

§  2.  Uncles  and  Aunts  take  Personal  Estate. — 
Uncles  and  aunts  take  no  portion  of  the  personal  es- 
tate of  a  deceased,  if  such  deceased  leaves  any  de- 
scendant,^'*   husband, ^^    widow,^^    parent, ^^    grandpa- 

11  R.  P.  Law,  §  288. 

12  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

13  Id. 

14  Code,  §  2732,  subds.  1-.5. 

15  See  authorities  under  Husband  —  Personal  Estate,  p.  3G. 
i«  Code,  §  2732,  subd.  3. 

17  Code  Civ.  Pro.  §  2732,  subds.  7,  8. 


OF   THE  RIGHTS   OF  UNCLES  AXD  AUXTS,   ETC.        (  4 

rent/^  brother,  sister/^  or  descendant  of  a  brother  or 
sister."'^ 

Where  uncles  and  aunts^^  are  not  excluded,  as 
above,  they  take  or  share  all  the  personal  estate  of 
the  deceased  in  equal  portions  per  capita  with  such 
great-grandparents^^  of  the  deceased  as  may  be  living, 
deceased  uncles  and  aunts,  who  have  descendants  liv- 
ing, being  counted  for  the  purpose  of  division  as 
themselves  living.^^ 

§  3.  Cousins  take  Real  Estate. —  Cousins  inherit  no 
portion  of  the  real  estate  of  a  deceased  if  such  de- 
ceased leaves  any  descendant,  parent,  brother,  sister, 
or  descendant  of  a  brother  or  sister.^^  Neither  can 
cousins  inherit  if  their  parent  (being  an  uncle  or 
aunt  of  the  deceased)  be  living.^^  If  the  deceased 
leaves  a  widow,  the  real  estate  is  taken  subject  to  her 
rights.^*^    If  the  deceased  leaves  a  husband,  to  whom 

IS  Bogert  r.  Furman,  10  Paige  Ch.  496. 

i9Bogert  r.  Furman,  10  Paige  Ch.  496;  Sweezy  i:  Willis,  1 
Bradf.  495. 

20  Code,  §  2732,  subd.  5. 

21  A  paternal  aunt  of  the  half-blood  and  a  maternal  aunt  of 
the  whole-blood  took  equally.  Hallet  v.  Hare,  5  Paige,  316. 
See  also  ante,  p.  16. 

22  For  they  are  all  of  equal  degree  to  the  deceased.  Code, 
§  2732,  subds.  5,  10,  12. 

23  Code,  §  2732,  subds.  5,  12.     See  note  38,  p.  63. 

24  R.  P.  Law,  §  288. 

25  R.  p.  Law,  §§  281-288. 

26  For  the  rights  of  a  widow,  see  Widow,  p.  30. 


i  8  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

a  child  was  born  alive,  the  real  estate  is  taken  subject 
to  his  right  of  curtesy.^^ 

Where  the  real  estate  did  not  come  to  the  deceased 
on  the  part  of  either  the  father  or  mother,^^  and  the 
cousins  are  not  excluded  from  the  inheritance  as 
above,  they  inherit  as  follows  r® 

(1.)  If  the  deceased  leaves  no  uncle  or  aunt,  the 
cousins  inherit  in  equal  portions  (perhaps  sub- 
ject to  dower  or  curtesy  above  mentioned)  all 
the  real  estate  which  did  not  come  to  the  de- 
ceased on  the  part  of  either  father  or  mother; 
deceased  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(2.)  If  the  deceased  leaves  an  uncle  or  aunt,  the 
cousins,  who  are  children  of  a  deceased  uncle  or 
aunt,  take  in  equal  portions^^  (perhaps  subject 
to  dower  or  curtesy  above  mentioned)  the  share 
their  parent  would  have  taken  if  living;  which 
would  be  such  portion  as  Avould  come  to  their 

27  See  Husband,  p.  35. 

28  As  to  Avhen  real  estate  is  said  to  liaA^c  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

29  R.  P.  Law,  §  288 ;  Hyatt  v.  Pugsley,  23  Barb.  300 ;  Hyatt 
V.  Pugsley,  33  Id.  373;  Kelly  v.  Kelly,  5  Lans.  446;  aff'd, 
without  passing  on  this  point,  in  61  N.  Y.  47. 

30  Deceased  cousins,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves  living. 


OF   THE  RIGHTS   OF   UNCLES  AND  AUNTS,   P:TC.        4  \) 

parent  upon  the  equal  division  of  such  real  estate 
among  the  uncles  and  aunts  of  the  deceased ; 
deceased  uncles  and  aunts,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of 
division  as  themselves  living, 

^A^iere  the  real  estate  came  to  the  deceased  on  the 
part  of  the  father^^  and  paternal  cousins  are  not  ex- 
cluded from  the  inheritance  as  above,  they  inherit  as 
follows  :^^ 

(1.)  If  the  deceased  leaves  no  paternal  uncle  or 
aunt,  the  paternal  cousins  inherit  in  equal  por- 
tions (perhaps  subject  to  dower  or  curtesy  above 
mentioned)  all  the  real  estate  which  came  to  the 
deceased  on  the  part  of  the  father;  deceased 
paternal  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(2.)  If  the  deceased  leaves  a  paternal  uncle  or 
aunt,  the  paternal  cousins,  who  are  children  of 
a  deceased  uncle  or  aunt,  take  in  equal  portions^^ 
(perhaps  subject  to  dower  or  cui'tesy  above  men- 
tioned) the  share  their  parent  would  have  taken 

•"51  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

32  R.  P.  Law,  §  288. 

.'13  Deceased  paternal  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as  themselves  living. 


80  INTESTATE    SUCCESSION    IN    NEW    YORK. 

if  living ;  which  would  be  such  portion  as  would 
come  to  their  parent  upon  the  equal  division  of 
such  real  estate  among  the  paternal  uncles  and 
aunts  of  the  deceased;  deceased  paternal  uncles 
and  aunts,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living. 

(3.)  If  the  deceased  leaves  no  paternal  uncle  or 
aunt,  or  descendant  of  either,  maternal  cousins 
inherit  as  if  the  inheritance  came  to  the  deceased 
on  the  part  of  the  mother. 

Where  the  real  estate  came  to  the  deceased  on  the 
part  of  the  mother^*  and  the  maternal  cousins  are  not 
excluded  from  the  inheritance  as  above,  they  in- 
herit as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  maternal  uncle  or 
aunt,  maternal  cousins  inherit  in  equal  portions 
(perhaps  subject  to  dower  or  curtesy  above  men- 
tioned) all  the  real  estate  which  came  to  the  de- 
ceased on  the  part  of  the  mother;  deceased  ma- 
ternal cousins,  who  have  descendants  living,  be- 
ing counted  for  the  purpose  of  division  as  them- 
selves living. 

34  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  the  father  or  mother,  see  p.  28. 

35  R.  P.  Law,  §  288. 


OF  THE  RIGHTS  OF  UNCLES  AND  AUNTS,   ETC.       81 

(2.)  If  the  deceased  leaves  a  maternal  uncle  or 
aunt,  maternal  cousins  who  are  children  of  a 
deceased  uncle  or  aunt  take  in  equal  portions^^ 
(perhaps  subject  to  dower  or  curtesy  above  men- 
tioned) the  share  their  parent  would  have  taken 
if  living ;  which  would  be  such  portion  as  would 
come  to  their  parent  upon  the  equal  division  of 
such  real  estate  among  the  maternal  uncles  and 
aunts  of  the  deceased ;  deceased  maternal  uncles 
and  aunts,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(3.)  If  the  deceased  leaves  no  maternal  uncle  or 
aunt,  or  descendant  of  either,  paternal  cousins 
inherit  as  if  the  inheritance  came  to  the  de- 
ceased on  the  part  of  the  father. 

§  4.  Cousins  take  Personal  Estate. —  Cousins  take 
no  portion  of  the  personal  estate  of  a  deceased  if  such 
deceased  leaves  any  descendant,^^  husband,^^  widow,^* 
parent,^^  grandparent,^^  brother,  sister,**^  or  descend- 
ant of  a  brother  or  sister. 

36  Deceased  maternal  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as  themselves  living. 

37  Code,  §  2732,  subds.  1-5. 

38  See  authorities  under  Husband  —  Personal  Estate,  p.  35. 

39  Code,  §  2732,  subd.  3. 

40  Code,  §  2732,  subds.  7,  8. 

41  Grandparents  exclude  uncles  and  aunts.     Bogert  v.  Fur- 
man,  10  Paige   Ch.  406;  Sweezy  v.  Willis,  1  Bradf.  495. 

42  Code,  §  2732,  subds.  5,  12. 

6 


82  INTESTATE    SUCCESSION    IN    NEW    YOEK, 

Xeither  can  cousins  take  if  their  parent  (being  an 
uncle  or  aunt  of  the  deceased)  be  living.'*^ 

Where  cousins  are  not  excluded  as  above,  they  take 
or  share  in  the  personal  estate  of  the  deceased  the 
same  as  if  it  were  real  estate,  which  did  not  come  to 
the  intestate  on  the  part  of  either  father  or  mother.^* 
See  p.  78. 

§  5.  Children  of  Cousins  take  Real  Estate. —  Chil- 
dren of  cousins  inherit  no  portion  of  the  real  estate 
of  a  deceased,  if  such  deceased  leaves  any  descendant, 
parent,  brother,  sister,  or  descendant  of  a  brother  or 
sister.'*^  ^Neither  can  children  of  cousins  inherit  if 
their  parent  (being  a  cousin  of  the  deceased)  or 
grandparent  (being  an  uncle  or  aunt  of  the  deceased) 
be  living. ^^  If  the  deceased  leaves  a  widow,  the  real 
estate  is  taken  subject  to  her  rights.^^  If  the  deceased 
leaves  a  husband  to  whom  a  child  was  born  alive,  the 
real  estate  is  taken  subject  to  his  right  of  curtesy. ^^ 

AVliere  the  real  estate  did  not  come  to  the  deceased 
on  the  part  of  either  the  father  or  mother,^®  and  the 

43  Id. 

44  Id.    See  note  38,  p.  63. 

45  R.  p.  Law,  §§  281-288. 
40  R.  P.  Law,  §  288. 

47  For  the  rights  of  a  widow,  see  Widow,  p.  30. 

48  See  Husband,  p.  35. 

49  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 


Ol"  THE  IIIGIITS   OF   UNCLES  AND  AUNTS,   ETC.       83 

children  of  cousins   are  not  excluded  from  the   in- 
heritance as  above,  they  inherit  as  follows  :^ 

( 1 )  If  the  deceased  leaves  no  uncle,  aunt  or  cousin, 
the  children  of  cousins  inherit  in  equal  portions 
(perhaps  subject  to  dower  or  curtesy  as  above 
mentioned)  all  such  real  estate;  deceased  chil- 
dren of  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(2.)  If  the  deceased  leaves  a  cousin,  but  no  uncle 
or  aunt,  the  children  of  cousins,  who  are  children 
of  a  deceased  cousin,  take  in  equal  portions^^ 
(perhaps  subject  to  dower  or  curtesy  as  above 
mentioned)  the  share  their  parent  would  have 
taken  if  living;  which  would  be  such  portion  as 
would  come  to  the  parent  upon  the  equal  division 
of  such  real  estate  among  the  cousins ;  the  de- 
ceased cousins,  who  have  descendants  living,  be- 
ing counted  for  the  pui*pose  of  division  as  them- 
selves living.^" 

(3.)  If  the  deceased  leaves  an  imcle  or  aunt,  the 
children  of  cousins,  who  are  not  excluded  by  a 

50  R.  p.  Law,  §  288. 

51  Deceased  children  of  cousins,  who  have  descendants  liv- 
inw.  being  counted  for  the  purpose  of  division  as  themselves 
living. 

52  Hvatt  V.  Pugslev,  23  Barb.  285 ;  aff 'd  in  33  Barb.  373. 


84  INTESTATE    SUCCESSION    IN    NEW    YORK. 

living  ancestor  as  above,  take  or  share  in  by 
representation  (perhaps  subject  to  dower  or 
curtesy  as  above  mentioned)  the  portion  their 
grandparent  (an  uncle  or  aunt  of  the  deceased) 
would  have  taken  if  living ;  which  would  be  such 
portion  as  would  come  to  such  grandparent  upon 
the  equal  division  of  such  real  estate  among  the 
uncles  and  aunts ;  deceased  uncles  and  aunts, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

"Where  the  real  estate  came  to  the  deceased  on  the 
part  of  the  father,^^  and  the  children  of  paternal 
cousins  are  not  excluded  from  the  inheritance  as 
above,  they  inherit  as  follows  :^* 

(1.)  If  the  deceased  leaves  no  paternal  uncle,  aunt, 
or  cousin,  the  children  of  paternal  cousins  in- 
herit in  equal  portions  (perhaps  subject  to  dower 
or  curtesy  as  above  mentioned)  all  the  real  estate 
which  came  to  the  deceased  on  the  part  of  the 
father;  deceased  children  of  paternal  cousins, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  paternal  cousin,  but 
no  paternal  uncle  or  aunt,  the  children  of  pater- 

5SAs  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father,  see  p.  28. 
54  R.  P.  Law,  §  288. 


OF   THE  RIGHTS  OF  UNCLES  AND  AUNTS,   ETC.        85 

nal  cousins,  who  are  children  of  a  deceased 
paternal  cousin,  take  in  equal  portions^^  (per- 
haps subject  to  dower  or  curtesy  as  above  men- 
tioned) the  share  their  parent  (a  paternal  cousin 
of  the  deceased)  would  have  taken  if  living; 
which  would  be  such  portion  as  would  come  to 
their  parent  upon  the  equal  division  of  such 
real  estate  among  the  paternal  cousins ;  the  de- 
ceased paternal  cousins,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

(3.)  If  the  deceased  leave  a  paternal  uncle  or  aunt, 
the  children  of  paternal  cousins,  who  are  not 
excluded  by  a  living  ancestor  as  above,  take  or 
share  in  by  representation  (perhaps  subject  to 
dower  or  curtesy  as  above  mentioned)  the  por- 
tion their  grandparents  (a  paternal  uncle  or 
aunt  of  the  deceased)  Avould  have  taken  if  liv- 
ing; which  would  be  such  portion  as  would 
come  to  such  grandparent  upon  the  equal  divi- 
sion of  such  real  estate  among  the  paternal 
uncles  and  aunts ;  deceased  paternal  uncles  and 
aunts,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living. 

55  Deceased  children  of  paternal  cousins,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  division  as  them- 
selves living. 


86  INTESTATE    SL'CCESSION    IN    NEW    YOKK. 

(4.)  If  the  deceased  leaves  no  paternal  uncle  or 
aunt,  or  descendants  of  either,  the  children  of 
maternal  cousins  inherit  as  if  the  inheritance 
came  to  the  deceased  on  the  part  of  the  mother. 

Wliere  the  real  estate  came  to  the  deceased  on  the 
part  of  the  mother,^^  and  the  children  of  maternal 
cousins  are  not  excluded  from  the  inheritance  as 
above,  they  inherit  as  follows :' 


.57 


(1.)  If  the  deceased  leaves  no  maternal  uncle, 
aunt,  or  cousin,  the  children  of  maternal  cousins 
inherit  in  equal  jwrtions  (perhaps  subject  to 
dower  or  curtesy  as  above  mentioned)  all  the 
real  estate  which  came  to  the  deceased  on  the 
part  of  the  mother;  deceased  children  of  mater- 
nal cousins,  who  have  descendants  living,  being- 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(2.)  If  the  deceased  leaves  a  maternal  cousin,  but 
no  maternal  uncle  or  aunt,  the  children  of  mater- 
nal cousins,  Avho  are  children  of  a  deceased 
maternal  cousin,  take  in  equal  portions^®  (p^i^- 

56  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  mother,  see  p.  28. 

57  R.  p.  Law,  §  288. 

58  Deceased  children  of  maternal  cousins  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  division  as  them- 
selves living. 


OF  THE  RIGHTS  OF  UNCLES  AND  AUNTS,   ETC.        87 

haps  subject  to  dower  or  curtesy  as  above  men- 
tioned) the  share  their  parent  (a  maternal  cousin 
of  the  deceased)  would  have  taken  if  living; 
which  would  be  such  portion,  as  would  come  to 
their  parent  upon  the  equal  division  of  such  real 
estate  among  the  maternal  cousins ;  the  deceased 
maternal  cousins,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(3.)  If  the  deceased  leaves  a  maternal  uncle  or 
aunt,  the  children  of  maternal  cousins,  who  are 
not  excluded  by  a  living  ancestor  as  above,  take 
or  share  in  by  representation  (perhaps  subject 
to  dower  or  curtesy  as  above  mentioned)  the 
portion  their  grandparent  (a  maternal  uncle  or 
aunt  of  the  deceased)  would  have  taken  if  liv- 
ing ;  Avhich  would  be  such  portion  as  would  come 
to  such  grandparent  upon  the  equal  division  of 
such  real  estate  among  the  maternal  uncles  and 
aunts ;  deceased  maternal  uncles  and  aunts,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

(4.)  If  the  deceased  leaves  no  maternal  uncle  or 
aunt,  or  descendants  of  either,  the  children  of 
paternal  cousins  inherit  as  if  the  inheritance 
came  to  the  deceased  on  the  part  of  the  father. 


88  INTESTATE    SUCCESSION    IN    NEW    YORK. 

§  C.  Children  of  Cousins  take  Personal  Estate. — 
Children  of  cousins  take  no  portion  of  the  personal 
estate  of  a  deceased  if  such  deceased  leaves  any  de- 
scendant, husband,  widow,  parent,  grandparent, 
brother,  sister,  or  descendant  of  a  brother  or  sister.^^ 

^Reither  can  children  of  cousins  take  if  their  parent 
(being  a  cousin)  or  their  grandparent  (being  an 
uncle  or  aunt  of  deceased)  be  living. 

Where  children  of  cousins  are  not  excluded  as 
above  they  take  or  share  in  the  personal  estate  of  the 
intestate  the  same  as  if  it  were  real  estate,  which  did 
not  come  to  the  intestate  on  the  part  of  either  father 
or  mother.     See  p.  82.^^ 

§  7.  Grandchildren  of  Cousins  take  Real  Estate. 
—  Grandchildren  of  cousins  inherit  no  portion  of  the 
real  estate  of  a  deceased  if  such  deceased  leaves  any 
descendant,  parent,  brother,  sister,  or  descendant  of 
a  brother  or  sister.^''  jSTeither  can  grandchildren  of 
cousins  inherit  if  their  parent  (being  a  child  of  a 
cousin  of  the  deceased),  grandparent  (being  a 
cousin  of  the  deceased),  or  great-grandparent  (being 
an  uncle  or  aunt  of  the  deceased)  be  living.^^  Tf  the 
deceased  leaves  a  widow,  the  real  estate  is  taken  sub- 
ject to  her  rights.^    If  the  deceased  leaves  a  husband, 

59  Code,  §  2732,  subds.  5,  12.    See  note  38,  p.  63. 

60  Code,  §  2732,  subds.  5,  10,  12.    See  note  38,  p.  63. 

61  R.  P.  Law,  §§  281-288. 

62  R.  p.  Law,  ?  288. 

63  For  rights  of  a  widow,  see  Widow,  p.  30. 


OF  THE   RIGHTS  OF  UXCLES  AXD  AUNTS,   ETC.       89 

to  M'hom  a  child  was  bom  alive,  the  real  estate  is  taken 
subject  to  the  husband's  right  of  curtesy.^^ 

AVhere  the  real  estate  did  not  come  to  the  deceased 
on  the  part  of  either  the  father  or  mother,^  and  the 
grandchildren  of  cousins  are  not  excluded  from  the 
inheritance  as  above,  they  inherit  as  follows  :^ 

(1.)  If  the  deceased  leaves  no  uncle,  aunt,  cousin, 
or  child  of  a  cousin,  the  grandchildren  of  cousins 
inherit  in  equal  portions  (perhaps  subject  to 
dower  or  curtesy  as  above  mentioned)  all  such 
real  estate;  deceased'  grandchildren  of  cousins, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  child  of  a  cousin,  but 
no  uncle,  aunt,  or  cousin,  the  grandchildren  of 
cousins,  who  are  children  of  a  deceased  child  of 
a  cousin,  take  in  equal  portions^^  (perhaps  sub- 
ject to  dower  or  curtesy  as  above  mentioned)  the 
share  their  parent  would  have  taken  if  living; 
which  would  be  such  portion  as  would  come  to 
their  parent  upon  the  equal  division  of  such  real 

64  See  Husband,  p.  35. 

65  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

66  R.  p.  Law,  §  288. 

67  Deceased  grandchildren  of  cousins,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division  as  themselves 
living. 


90  INTESTATE    SUCCESSION    IN    NEW    YORK. 

estate  among  the  cliildren  of  cousins,  the  de- 
ceased children  of  cousins,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

(3.)  If  the  deceased  leaves  a  cousin,  but  no  uncle 
or  aunt,  the  grandchildren  of  cousins,  who  are 
not  excluded  by  a  living  ancestor  as  above  indi- 
cated, take  or  share  in,  by  representation,  the 
portion  their  grandparent  (a  cousin  of  the  de- 
ceased) would  have  taken  if  living;  which  would 
be  such  portion  as  would  come  to  their  parent 
upon  the  equal  division  of  such  real  estate  among 
the  cousins  ;  deceased  cousins,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of 
division  as  themselves  living. 

(4.)  If  the  deceased  leaves  an  uncle  or  aunt,  the 
grandchildren  of  cousins,  who  are  not  excluded 
by  a  living  ancestor  as  above  indicated,  take  or 
share  in,  by  representation,  the  portion  their 
great-grandparent  (an  uncle  or  aunt  of  the  de- 
ceased) would  have  taken  if  living;  which  would 
be  such  portion  as  would  come  to  their  great- 
grandparent  upon  the  equal  division  of  such  real 
estate  among  the  uncles  and  aunts ;  deceased 
uncles  and  aunts,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 


OF   THE  KIGIITS  OF  UNCLES  AXD  AUN'^TS,   ETC.       91 

AVliere  the  real  estate  came  to  the  deceased  on  the 
part  of  the  father,*'^  and  the  grandchildren  of  paternal 
consins  are  not  excluded  by  a  living  ancestor  as  above 
indicated,  thej^  inherit  as  follows  :^ 

(1.)  If  the  deceased  leaves  no  paternal  uncle,  aunt, 
cousin,  or  child  of  a  paternal  cousin,  the  grand- 
children of  paternal  cousins  inherit  in  equal 
portions  (perhaps  subject  to  dower  or  curtesy 
as  above  mentioned)  all  such  real  estate;  de- 
ceased grandchildren  of  paternal  cousins,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  child  of  a  paternal 
cousin,  but  no  paternal  uncle,  aunt,  or  cousin, 
the  grandchildren  of  paternal  cousins,  who  are 
children  of  a  deceased  child  of  a  paternal  cousin, 
take  in  equal  portions^"  (perhaps  subject  to 
dower  or  curtesy  as  above  mentioned)  the  share 
their  parent  would  have  taken  if  living;  which 
would  be  such  portion  as  would  come  to  their 
parent  (a  child  of  a  paternal  cousin  of  the  de- 

68  As  to  Avhen  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  father  or  mother,  see  p.  28. 

69  R.  P.  Law,  §  288. 

70  Deceased  grandchildren  of  paternal  cousins,  who  have  de- 
scendants living,  being  counted  for  the  purpose  of  division  as 
themselves  living. 


92  INTESTATE    SUCCESSION    IN    NEW    YORK. 

ceased)  upon  the  equal  division  of  sucli  real  es- 
tate among  the  children  of  paternal  cousins; 
deceased  children  of  paternal  cousins,  who  have 
descendants  living,  being  counted  for  the  pur- 
pose of  division  as  themselves  living. 

(3.)  If  the  deceased  leaves  a  paternal  cousin,  hut 
no  pateiTial  uncle  or  aunt,  the  grandchildren  of 
paternal  cousins,  who  are  not  excluded  by  a  liv- 
ing ancestor  as  above  indicated,  take  or  share  in, 
bj  representation  (perhaps  subject  to  dower  or 
curtesy  as  above  mentioned)  the  portion  their 
grandparent  (a  paternal  cousin  of  the  deceased) 
would  have  taken  if  living ;  which  would  be  such 
portion  as  would  come  to  their  grandparent  upon 
the  equal  division  of  such  real  estate  among  the 
paternal  cousins ;  deceased  paternal  cousins,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

(4.)  If  the  deceased  leaves  a  paternal  uncle  or 
aunt,  the  grandchildren  of  paternal  cousins,  who 
are  not  exxcluded  by  a  living  ancestor  as  above 
indicated,  take  or  share  in,  by  representation 
(perhaps  subject  to  dower  or  curtesy  as  above 
mentioned)  the  portion  their  great-grandparent 
(a  paternal  uncle  or  aunt  of  the  deceased)  would 
have  taken  if  living;  which  Avould  be  such  por- 
tion as  would  come  to  their  great-grandparent 


OF   THE   RIGHTS  OF  UXCLES  AND  AUNTS,   ETC.        93 

upon  the  equal  division  of  such  real  estate  among 
paternal  uncles  and  aunts;  deceased  paternal 
uncles  and  aunts,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

(5.)  If  the  deceased  leaves  no  paternal  uncle  or 
aunt,  or  descendant  of  either,  the  grandchildren 
of  maternal  cousins  inherit  as  if  the  inheritance 
came  to  the  deceased  on  the  part  of  the  mother. 

Wliere  the  real  estate  came  to  the  deceased  on  the 
part  of  the  mother,^^  and  the  grandchildren  of  mater- 
nal cousins  are  not  excluded  bj  a  living  ancestor  as 
above  indicated,  they  inherit  as  follows  '?^ 

(1.)  If  the  deceased  leaves  no  maternal  uncle, 
aunt,  cousin,  or  child  of  a  maternal  cousin,  the 
grandchildren  of  maternal  cousins  inherit  in 
equal  portions  (perhaps  subject  to  dower  or  cur- 
tesy as  above  mentioned)  all  such  real  estate; 
deceased  grandchildren  of  maternal  cousins,  who 
have  descendants  living,  being  counted  for  the 
purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  child  of  a  maternal 
cousin,  but  no  maternal  uncle,  aunt,  or  cousin, 

71  As  to  when  real  estate  is  said  to  have  come  to  a  deceased 
on  the  part  of  the  father  or  mother,  see  p.  28. 

72  R.  P.  Law,  §  288. 


94  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

the  grandchildren  of  maternal  cousin?,  who  are 
children  of  a  deceased  child  of  a  maternal  cousin, 
take  in  eqnal  portions"^  (perhaps  subject  to 
dower  or  cnrtesy  as  above  mentioned)  the  share 
their  parent  Avould  have  taken  if  living;  which 
would  be  such  portion  as  would  come  to  their 
parent  upon  the  equal  division  of  such  real  es- 
tate among  the  children  of  maternal  cousins ; 
deceased  children  of  maternal  cousins,  who  have 
descendants  living,  being  counted  for  the  purpose 
of  division  as  themselves  living. 

(3.)  If  the  deceased  leaves  a  maternal  cousin,  but 
no  maternal  uncle  or  aunt,  the  grandchildren  of 
maternal  cousins,  who  are  not  excluded  by  a  liv- 
ing ancestor  as  above  indicated,  take  or  share  in 
by  representation  (perhaps  subject  to  dower  or 
curtesy  as  above  mentioned)  the  portion  their 
grandparent  (a  maternal  cousin  of  the  deceased) 
would  have  taken  if  living;  which  would  be 
such  portion  as  would  come  to  their  grandparent 
upon  the  equal  division  of  such  real  estate  among 
the  maternal  cousins  ;  deceased  maternal  cmisins, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

73  Deceased  grandchildren  of  maternal  cousins,  who  have  de- 
scendants living,  being  counted  for  the  purpose  of  division  as 
themselves  living. 


OF   THE  RIGHTS  OF  UNCLES  AND  AUXTS,   ETC.        95 

(4.)  If  tlie  deceased  leaves  a  maternal  uncle  or 
aunt,  the  grandchildren  of  maternal  cousins, 
who  are  not  excluded  bv  a  living  ancestor  as 
above  indicated,  take  or  share  in  by  representa- 
tion (perhaps  subject  to  dower  or  curtesy  as 
above  mentioned)  the  portion  the  great-grand- 
parent (a  maternal  uncle  or  aunt  of  the  de- 
ceased) would  have  taken  if  living;  which  would 
be  such  portion  as  would  come  to  their  great- 
grandparent  upon  the  equal  division  of  such  real 
estate  among  the  maternal  uncles  and  aunts ; 
deceased  maternal  uncles  and  aunts,  who  have 
descendants  living,  being  counted  for  the  purpose 
of  division  as  themselves  living. 

(5.)  If  the  deceased  leaves  no  maternal  uncle  or 
aunt,  or  descendant  of  either,  the  grandchildren 
of  paternal  cousins  inherit  as  if  the  inheritance 
came  to  the  deceased  on  the  part  of  the  father. 

§  8.  Grandchildren  of  Cousins  take  Personal  Estate. 
• — •  Grandchildren  of  cousins  take  no  portion  of  the 
personal  estate  of  a  deceased,  if  such  deceased  leaves'^ 
any  descendant,  husband,  widow,  parent,  grand- 
parent, brother,  sister,  or  descendant  of  brother  or 
sister.'^^ 

"*  See  notes  under  head  of  varioiis  relatives  named. 
'5  Code,  §  27.32,  subds.  5,  12.    See  note  38,  p.  C3. 


96  INTESTATE    SUCCESSION.   IN    NEW    YOKK. 

Xeither  can  grandchildren  of  cousins  take  if  their 
parent  (being  a  child  of  a  cousin),  their  grandparent 
(being  a  cousin)  or  their  great-grandparent  (being 
an  uncle  or  aunt  of  deceased)  be  living. 

iWhen  grandchildren  of  cousins  are  not  excluded  as 
above  they  take  a  share  in  the  personal  estate  of  the 
intestate  the  same  as  if  it  were  real  estate,  which 
did  not  come  to  the  intestate  on  the  part  of  either 
father  or  mother.     See  p.  89.'^*^ ' 

76  Id. 


CHAPTEK  VIII. 

OF  THE  RIGHTS  OF  GEEAT-UNCLES  AXD  AUXTS  AND 
THEIR  DESCENDANTS. 

§   1.  Great-uncles  and  aunts  take  Real  Estate. 

2.  Great-uncles  and  aunts  take  Personal  Estate. 

3.  Children  of  great-uncles  and  aunts  take  Real  Estate. 

4.  Children  of  great-uncles  and  aunts  take  Personal  Estate. 

5.  Second  cousins  take  Real  Estate. 

G.   Second  cousins  take  Personal  Estate. 

7.  Children  of  second  cousins  take  Real  Estate. 

8.  Children  of  second  cousins  take  Personal  Estate. 

§  1,  Great-uncles  and  Great-aunts  take  Real  Estate. 
—  Great-uncles  and  great-aunts  inherit  no  portion 
of  the  real  estate  of  a  deceased,  if  such  deceased  leaves 
any  descendant,  parent,  brother,  sister,  descendant 
of  a  brother  or  sister,  uncle,  aunt,  or  descendant  of 
an  uncle  or  aunt.^  If  the  deceased  leaves  a  widow, 
the  real  estate  is  taken  subject  to  her  rights.^  If  the 
deceased  leaves  a  husband,  to  whom  a  child  is  born 
alive,  the  real  estate  is  taken  subject  to  the  husband's 
right  of  curtesy.^ 

Where  great-uncles  and  aunts  are  not  excluded 
as  above,  they  inherit  according  to  the  course  of  the 

1  R.  P.  Law,  §§  281-290. 

2  For  the  rights  of  the  widow,  see  Widow,  p.  30. 

3  See  Husband,  p.  35. 


08  INTESTATE    SUCCESSION    IN    NEW     YOKK. 

common  law/  unless  the  inheritance  came  to  tlic  in- 
testate from  a  deceased  husband  or  wife."" 

The  common-law  rules  or  canons  of  descent,  as 
given  by  Sir  William  Blackstone  in  the  Second  Book 
of  Jiis  Commentaries,  are  as  follows: 

"  I.  The  first  rule  is,  that  inheritance  shall  lin- 
eally descend  to  the  issue  of  the  person  who 
last  died  actually  seized,  in  infinitum;  but 
shall  never  lineally  ascend,"  p.  *208. 

"  11.  A  second  general  rule  or  canon  is,  that  the 
male  issue  shall  be  admitted  before  the  fe- 
male,"^ p.  *212. 

"  III.  A  third  rule  or  canon  of  descent  is  this : 
that  where  there  are  two  or  more  males,  in  equal 
degree,  the  eldest  only  shall  inherit ;  but  the 
females  all  together,"  p.  *214. 

"  IV.  A  fourth  rule  or  canon  of  descent  is  this : 
that  the  lineal  descendants,  in  infinitum,  of  any 
person  deceased  shall  represent  their  ancestor; 
that  is,  shall  stand  in  the  same  place  as  the  per- 

4R.  p.  Law,  §  291. 

5  If  so  it  descends   to   the   heirs   of  such   husband   or   wife. 
R.  P.  Law,  §  290a. 

6  Great-uncles    and    their    descendants    exclude    great-aunts. 
Hunt  r.  Kingston,  3  Misc.  309. 


KIGIITS    OF    GKEAT-UXCLES    AND   AU2sTS,    ETC.        09 

son  himself  would  have  done  had  he  been  liv- 
ing," p.  *216. 

'*  V.  A  fifth  rule  is,  that  on  failure  of  lineal  de- 
scendants, or  issue,  of  the  person  last  seized,  the 
inheritance  shall  descend  to  his  collateral  rela- 
tions, being  of  the  blood  of  the  first  purchaser; 
subject  to  the  three  preceding  rules,"  p.  *220. 

"  VI.  A  sixth  rule  or  canon  therefore  is,  that  the 
collateral  heir  of  the  person  last  seized  must  be 
his  next  collateral  kinsman  of  the  whole  blood," 
p.  *224. 

"  VII.  The  seventh  and  last  rule  or  canon  is,  that 
in  collateral  inheritances  the  male  stocks  shall 
be  preferred  to  the  female  (that  is,  kindred  de- 
rived from  the  blood  of  the  male  ancestors,  how- 
ever remote,  shall  be  admitted  before  those  from 
the  blood-  of  the  female,  however  near) ,  unless 
where  the  lands  have,  in  fact,  descended  from  a 
female,"  p.  *234. 

g  2.  Great-uncles  and  Great-aunts  take  Personal  Es- 
tate.—  Great-uncles  and  great-aunts  take  no  portion 
of  the  personal  estate  of  a  deceased,  if  such  deceased 
loaves^  any  descendant,  husband,  wndow,  parent, 
grandparent,   great-grandparent,  brother,  sister,   de- 

7  See  notes  under  head  of  the  various  relatives  named. 


100  INTESTATE    SUCCESSION    IN    NEW    YOEK. 

scendant  of  brotlier  or  sister,  uncle,  aunt,  or  desccrul- 
ant  of  uncle  or  aunt.^ 

Where  great-uncles  and  aunts  are  not  excluded,  as 
above,  they  take  or  share  all  the  personal  estate  of  the 
deceased  in  equal  portions,  per  capita,  with  such 
great-great-grandparents  of  the  deceased  as  may  be 
living,®  deceased  uncles  and  aunts,  who  have  descend- 
ants living,  being  counted  for  the  purpose  of  divi- 
sion as  themselves  living.  ^"^ 

§  3.  Children  of  Great-uncles  and  aunts  take  Real 
Estate. —  Children  of  great-uncles  and  aunts  inherit 
no  portion  of  the  real  estate  of  a  deceased  if  sucli 
deceased  leaves  any  descendant,  parent,  brother,  sis- 
ter, descendant  of  a  brother  or  sister,  uncle,  aunt,  or 
descendant  of  an  uncle  or  aunt.^^  If  the  deceased 
leaves  a  widow,  the  real  estate  is  taken  subject  to  her 
rights.''^  If  the  deceased  leaves  a  husband,  to  whom 
a  child  was  born  alive,  the  real  estate  is  taken  subject 
to  the  husband's  right  of  curtesy.^" 

Where  children  of  great-uncles  and  aunts  are  not 
excluded  as  above,  their  ability  to  inherit  is  deter- 

8  Code,  §  2732,  subds.  5,  12.     See  note  38,  p.  G3. 

9  For  they  are  all  of  equal  degree  to  the  deceased.     Code, 
§  2732,  subds.  5,  10. 

10  Code,  §  2732,  subds.  5,  12.     See  note  38,  p.  G3. 

11  R.  P.  Law,  §§  281.  200. 

12  For  the  rights  of  a  widow,  see  Widow,  p.  30. 
i-i  See  Husband,  p.  35. 


RIGHTS    OF    GKEAT-UXCLES    AND    AUXTS,    ETC.        101 

mined  bj  the  niles  of  the  common  law/*  nnless  the 
inheritance  came  to  the  intestate  from  a  deceased  hus- 
band or  wife.^^ 

§  4.  Children  of  Great-uncles  and  aunts  take  Per- 
sonal Estate. —  Children  of  great-uncles  and  aunts 
take  no  portion  of  the  personal  estate  of  a  deceased  if 
such  deceased  leaves^''  any  descendant,  husband, 
widow,  parent,  grandparent,  great-grandparent, 
brother,  sister,  descendant  of  brother  or  sister,  uncle, 
aunt,  or  descendant  of  uncle  or  aunt.^^ 

Xeither  can  they  take  if  their  parent  (being  a 
great-uncle  or  great-aunt  of  the  deceased)  be  living. 

Where  children  of  great-uncles  and  aunts  are  not 
excluded,  as  above,  they  take  or  share  in  the  personal 
estate  of  the  deceased  as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  great-uncle  or  great- 
aunt,  the  children  of  great-uncles  and  great-aunts 
take  in  equal  portions,  deceased  children  of 
great-uncles  and  great-aunts,  who  have  descend- 

14  R.  P.  Law,  §  291.  See  rules  given  under  Great-uncles  and 
Great-aunts,  p.  98.  Children  of  great-uncles  exclude  great- 
aunts  and  their  children.     Hunt  v.  Kingston,  3  Misc.  309. 

15  If  so,  it  descends  to  the  heirs  of  the  deceased  husband  or 
wife.     R.  P.  Law,  §  290a. 

16  See  notes  under  the  head  of  the  various  relatives  named. 

17  Code  Civ.  Pro.  subds.  5.  10,  12.    See  note  38,  p.  63. 

18  Id. 


102  INTESTATE    SUCCESSION    IN    NEW    YORK. 

ants  living,  being  counted  for  tlie  purpose  of 
division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  great-uncle  or  great- 
aunt,  the  children  of  a  deceased  great-uncle  or 
great-aunt  take  in  equal  portions  (deceased  chil- 
dren of  great-uncles  or  great-aunts,  who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living),  the  share  their 
parent  would  have  taken  if  living ;  which  would 
be  such  portion  as  would  come  to  their  parent 
upon  the  equal  division  among  the  great-uncles 
and  great-aunts  of  the  deceased ;  deceased  great- 
uncles  and  great-aunts,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 

§  5.  Second  Cousins  take  Real  Estate, —  Second 
cousins  inherit  no  portion  of  the  real  estate  of  a  de- 
ceased if  such  deceased  leave  any  descendant,  parent, 
brother,  sister,  descendant  of  a  brother  or  sister,  uncle, 
aunt,  or  descendant  of  an  uncle  or  aunt.^^  If  the 
deceased  leaves  a  widow,  the  real  estate  is  taken  sub- 
ject to  her  rights.^*'  If  the  deceased  leaves  a  husband, 
to  whom  a  child  was  born  alive,  the  real  estate  is  taken 
subject  to  the  husband's  right  of  curtesy.^^ 

19  R.  P.  Law,  §§  281-290. 

20  For  the  rights  of  a  widow,  see  Widow,  p.  30. 

21  See  Husband,  p.  35. 


RIGHTS    OF    GKEAT-UNCLES    AXD   AUNTS,    ETC.        103 

Where  second  cousins  are  not  excluded  as  above, 
their  ability  to  inherit  is  determined  by  the  rules  of 
the  common  law  hereinbefore  given,^^  unless  the  in- 
heritance came  to  the  intestate  from  a  deceased  hus- 
band or  wife.^^ 

§  6.  Second  Cousins  take  Personal  Estate —  Second 
cousins  take  no  portion  of  the  personal  estate  of  a  de- 
ceased if  such  deceased  leaves  any  descendant,  hus- 
band, widow,  parent,  grandparent,  great-grandparent, 
brother,  sister,  descendant  of  brother  or  sister,  uncle, 
aunt,  or  descendant  of  uncle  or  aunt.^^ 

i^either  can  they  take  if  their  parent  (being  a  child 
of  a  great-uncle  or  great-aunt)  or  their  grandparent 
(being  a  great-uncle  or  great-aunt)  be  living. ^^ 

Where  second  cousins  are  not  excluded  as  above, 
they  take  or  share  in  the  personal  estate  of  the  de- 
ceased as  follows  :~^ 

(1.)  If  the  deceased  leaves  no  great-uncle,  great- 
aunt,  or  child  of  a  greaMmcle  or  aunt,  second 
cousins  take  in  equal  portions ;  deceased  second 
cousins,    who   have    descendants    living,    being 

22  R.  p.  Law,  §  291.  See  rules  given  under  Great-uncles  and 
Great-aunts,  p.  98. 

23  If  so,  it  descends  to  the  heirs  of  such  husband  or  wife. 
R.  P.  Law,  §  290a. 

24  Code,  §  2732,  subds.  5,  12.     See  note  38,  p.  63. 

25  See  notes  under  the  head  of  the  various  relatives  named. 

26  Code,  §  2732,  subds.  5,  12.     See  note  38,  p.  6*3. 


10-1  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

counted  for  the  purpose  of  division  as  themselves 
living. 

(2.)  If  the  deceased  leaves  a  child  of  a  great-uncle 
or  aunt,  but  no  great-uncle  or  great-aunt,  the 
second  cousins,  who  are  children  of  a  deceased 
child  of  a  great-uncle  or  aunt,  take  in  equal  por- 
tions (deceased  second  cousins,  who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living)  the  share  their 
parent  would  have  taken  if  living ;  which  would 
be  such  portion  as  would  come  to  the  parent  upon 
the  equal  division  among  the  children  of  great- 
uncles  and  aunts ;  deceased  children  of  great- 
uncles  and  aunts,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living.^^ 

(3.)  If  the  deceased  leaves  a  great-uncle  or  great- 
aunt,  the  second  cousins  who  are  not  excluded 
by  a  living  ancestor  as  above,  take  or  share  in  by 
representation  the  share  their  grandparent  (be- 
ing a  great-uncle  or  great-aunt  of  the  deceased) 
would  have  taken  if  living;  which  would  bo  such 
portion  as  would  come  to  such  grandparent  upon 
an  equal  division  among  the  great  uncles  and 
great-aunts ;    deceased    great-uncles    and    auntie, 

27  Code  Civ.  Pro.  §  2732,  subds.  5,  10,  12. 


EIGHTS    OF    CiREAT-rXCLES    AND   AUNTS,    ETC.        3  05 

who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

§  7.  Children  of  Second  Cousins  take  Real  Estate. — 
Children  of  second  cousins  inherit  no  portion  of  the 
real  estate  of  a  deceased  if  such  deceased  leaves  any 
descendant,  parent,  brother,  sister,  descendant  of  a 
brother  or  sister,  uncle,  aunt,  or  descendant  of  an 
uncle  or  aunt.'^  If  the  deceased  leaves  any  widow, 
the  real  estate  is  taken  subject  to  her  rights.^  If  the 
deceased  leaves  a  husband,  to  whom  a  child  was  bom 
alive,  the  real  estate  is  taken  subject  to  the  husband's 
right  of  curtesy.^*^ 

Where  children  of  second  cousins  are  not  excluded 
as  above,  their  ability  to  inherit  is  determined  by  the 
rules  of  the  common  law  hereinbefore  given,^^  unless 
the  inheritance  came  to  the  intestate  from  a  deceased 
husband  or  wife.^^ 

§  8.  Children  of  Second  Cousins  take  Personal  Es- 
tate.—  Children  of  second  cousins  take  no  portion  of 
the  personal  estate  of  a  deceased,  if  such  deceased 
leaves^^    any    descendant,    husband,    widow,    parent, 

28  R.  p.  Law,  §§  281-290. 

29  For  the  rights  of  a  widow,  see  Widow,  p.  30. 

30  See  Husband,  p.  .3.5. 

31  R.  P.  Law,  §  201 :  McCarthy  r.  Marsh.  5  N.  Y.  263.  See 
rules  given  under  Great-uncles  and  Great-aunts,  p.  98. 

32  If  so,  it  descends  to  the  heirs  of  such  husband  or  wife. 
R.  P.  Law.  §  290a. 

33  See  notes  under  the  head  of  the  various  relatives  named. 


106  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

grandparent,  great-grandparent,  brother,  sister,  de- 
scendant of  a  brother  or  sister,  uncle,  aunt,  or  de- 
scendant of  an  uncle  or  aunt.^^ 

Neither  can  they  take  if  their  parent  (being  a  sec- 
ond cousin),  their  grandparent  (being  a  child  of  a 
great-uncle  or  aunt),  or  their  great-grandparent  (be- 
ing a  great-uncle  or  aunt  of  the  deceased)  be  living. 

Where  children  of  second  cousins  are  not  excluded 
as  above,  they  take  or  share  in  the  personal  estate  of 
the  deceased  as  follows  :^^' 

(1.)  If  the  deceased  leaves  no  great-uncle,  great- 
aunt,  child  of  a  great-uncle  or  aunt,  or  second 
cousin,  the  children  of  second  cousins  take  in 
equal  portions ;  deceased  children  of  second 
cousins,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living. 

(2.)  If  the  deceased  leaves  a  second  cousin  but  no 
great-uncle,  great-aunt  or  child  of  a  great-uncle 
or  aunt,  the  children  of  deceased  second  cousins, 
take  in  equal  portions  (deceased  children  of  sec- 
ond cousins,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living)  the  share  their  parent  would  have  taken 
if  living ;  which  would  be  such  portion  as  would 
come  to  their  parent  upon  the  equal  division 

34  Code,  §  2732,  subds.  5,  10,  12.     See  note  38,  p.  G3. 

35  Id. 


RiGliTS    OF    GREAT-UNCLES    AND    AUNTS,    ETC.        107 

among  the  second  cousins ;  deceased  second 
cousins,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living. 

(3. )  If  the  deceased  leaves  a  child  of  a  great-uncle 
or  aunt,  but  no  great-uncle  or  great-aunt,  chil- 
dren of  second  cousins,  who  are  not  excluded  by 
a  living  ancestor  as  above,  take  or  share  in  by 
representation,  the  portion  their  grandparent  (a 
child  of  a  great-uncle  or  aunt)  would  have  taken 
if  living;  which  would  be  such  portion  as  would 
come  to  their  grandparent  upon  the  equal  divi- 
sion among  the  children  of  great-uncles  and 
great-aunts ;  deceased  great-uncles  and  aunts, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

(4.)  If  the  deceased  leaves  a  great-uncle  or  great- 
aunt,  the  children  of  second  cousins,  who  are  not 
excluded  by  a  living  ancestor  as  above,  take  or 
share  in^  by  representation,  the  portion  their 
great-grandparent  (a  great-uncle  or  great-aunt 
of  deceased)  would  have  taken  if  living;  wdiich 
would  be  such  portion  as  would  come  to  their 
great-grandparent  upon  the  equal  division  among 
the  great-uncles  and  great-aunts  ;  deceased  great- 
uncles  and  great-aunts,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 


CHAPTER  IX. 

OF  THE  RIGHTS  OF  GREAT-GREAT-UNCLES  AND  AUNTS 
AND  THEIR  DESCENDANTS. 

§   1.  Great-great-uncles  and  aunts  take  Real  Estate. 

2.  Great-great-uncles  and  aunts  take  Personal  Estate. 

3.  Children    of    great-great-uncles    and    aunts    take    Real 

Estate. 

4.  Children  of  great-great-uncles  and  aunts  take  Personal 

Estate. 

5.  Grandchildren  of  great-great-uncles  and  aiuits  take  Real 

Estate. 

6.  Grandchildren  of  great-great-uncles  and  aunts  take  Per- 

sonal Estate. 

7.  Third  cousins  take  Real  Estate. 

8.  Third  cousins  take  Personal  Estate. 

§  1,  Great-great-uncles  and  Great-great-aunts  take 
Real  Estate. — Great-great-uncles  and  great-gi'eat- 
aiints  inherit  no  portion  of  the  real  estate  of  a  de- 
ceased if  such  deceased  leaves  any  descendant,  parent, 
brother,  sister,  descendant  of  a  brother  or  sister,  nncle, 
aunt,  or  descendant  of  an  uncle  or  aunt.^  If  the  de- 
ceased leaves  a  widow,  the  real  estate  is  taken  subject 
to  her  rights.^  If  the  deceased  leaves  a  husband,  to 
whom  a  child  was  bom  alive,  the  real  estate  is  taken 
subject  to  the  husband's  right  of  curtesy.^ 

IR.  P.  Law,  §§  281-290. 

2  For  the  rights  of  a  \A'idow,  see  Widow,  p.  30. 

3  See  Husband,  p.  35. 

[108] 


OF  GREAT-GREAT-UXCLES   AXD  AUXTS,   ETC.        109 

Where  great-great-uncles  and  great-gTeat-aimts  are 
not  excluded  as  above,  their  ability  to  inherit  is  de- 
termined by  the  rules  of  the  common  law  hereinbe- 
fore given/  unless  the  inheritance  came  to  the  intes- 
tate from  a  deceased  husband  or  wife.^ 

§  2.  Great-great-uncles  and  Great-great-aunts  take 
Personal  Estate. —  Great-great-uncles  and  great-great- 
aunts  take  no  portion  of  the  personal  estate  of  a  de- 
ceased, if  such  deceased  leaves^  any  descendant,  hus- 
band, widow,  parent,  grandparent,  great-grandparent, 
great-great-grandparent,  brother,  sister,  descendant  of 
brother  or  sister,  uncle,  aunt,  descendant  of  an  uncle 
or  aunt,  great-uncle,  great-aunt,  or  descendant  of  a 
great-uncle  or  great-aunt.' 

Where  great-great-uncles  and  great-great-aunts  are 
not  excluded  as  above,  they  take  or  share  in  the  per- 
sonal estate  of  the  deceased,  in  equal  portions,  per 
capita,  with  such  great-great-great-grandparents  of 
the  deceased  as  may  be  living;  deceased  great-great- 
uncles  and  aunts,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living.* 

4R.  P.  Law,  §  291.  See  rules  given  under  Great-uncles  and 
Great-aunts,  p.  98. 

5  If  so,  it  descends  to  the  heirs  of  such  husband  or  wife. 
R.  P.  Law,  §  290a. 

6  See  notes  under  the  head  of  the  various  relatives  named. 

7  Code  Civ.  Pro.  §  2732,  subds.  5,  10,  12. 

8  Id. 


110  INTESTATE    SUCCESSION    IN    NEW    YOIJK. 

§  3.  Children  of  Great-great-uncles  and  aunts  take 
Real  Estate. —  Children  of  great-great-iincles  and 
aunts  inherit  no  portion  of  the  real  estate  of  a  de- 
ceased, if  such  deceased  leaves  any  descendant, 
parent,  brother,  sister,  descendant  of  a  brother  or 
sister,  uncle,  aunt,  or  descendant  of  an  uncle  or  aunt.^ 
If  the  deceased  leaves  a  widow,  the  real  estate  is 
taken  subject  to  her  rights. ^*^  If  the  deceased  leaves 
a  husband,  to  whom  a  child  was  born  alive,  the  real 
estate  is  taken  subject  to  the  husband's  right  of 
curtesy,^^ 

Where  children  of  great-great-uncles  and  aunts  are 
not  excluded  as  above,  their  ability  to  inherit  is  de- 
tennined  by  the  mles  of  the  common  law  as  herein- 
before given,^^  unless  the  inheritance  came  to  the  in- 
testate from  a  deceased  husband  or  wife.^^ 

§  4.  Children  of  Great-great-uncles  and  aunts  take 
Personal  Estate. —  Children  of  gTcat-great-uncles  and 
aunts  take  no  portion  of  the  personal  estate  of  a  de- 
ceased, if  such  deceased  leaves^^  any  descendant,  hus- 
band, widow,  parent,  grandparent,  great-grandparent, 

9R.  P.  Law,  §§  280-290. 

10  For  the  rights  of  a  widow,  see  Widow,  p.  30. 

11  See  Husband,  p.  35. 

12  R.  P.  Law,  §  29L  See  rules  given  under  Great-uncles  and 
Great-aunts,  p.  98. 

13  If  so,  it  descends  to  the  heirs  of  such  husband  or  wife. 
R.  P.  Law,  §  290a. 

14  See  notes  under  the  head  of  various  relatives  named. 


OF  GREAT-GREAT-UNCLES  AND  AUNTS,  ETC.   Ill 

great-great-graiidparent,  brother,  sister,  descendant  of 
brother  or  sister,  uncle,  aunt,  descendant  of  uncle  or 
aunt,  great-uncle,  great-aunt,  or  descendant  of  great- 
uncle  or  aunt.^^ 

N^either  can  they  take  if  their  parent  (being  a 
great-great-uncle  or  aunt  of  the  deceased)  be  living. 

Where  children  of  great-great-uncles  and  aunts  are 
not  excluded  as  above,  they  take  or  share  in  the  per- 
sonal estate  of  the  deceased  as  folloM's  :^^ 

(1.)  If  the  deceased  leaves  no  great-great-uncle  or 
great-great-aunt,  the  children  of  great-great- 
uncles  and  aunts  take  in  equal  portions;  de- 
ceased children  of  great-great-uncles  and  aunts, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  great-great-uncle  or 
great-great-aunt,  the  children  of  deceased  great- 
great-uncles  or  aunts  take  in  equal  portions  (de- 
ceased children  of  great-great-uncles  and  aunts, 
who  have  descendants  living,  being  counted  for 
the  purpose  of  division  as  themselves  living) ,  the 
share  their  parent  would  have  taken  if  living; 
which  would  be  such  portion  as  would  come  to 
their  parent  upon  the  equal  division  among  the 
great-great-uncles  and  aunts  of  the  deceased ;  de- 

i"^  Code,  §  2732,  subds.  5,  12.    See  note  38,  p.  63. 
16  Id. 


112  INTESTATE    SUCCESSION    IN    NEW    YOEK. 

ceased  great-gTeat-uncles  and  aunts,  who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living. 

§  5.  Grandchildren  of  Great-great-uncles  and  aunts 
take  Real  Estate. —  Grandchildren  of  great-great- 
uncles  and  aunts  inherit  no  portion  of  the  real  estate 
of  a  deceased,  if  such  deceased  leaves  any  descendant, 
parent,  brother,  sister,  descendant  of  a  brother  or  sis- 
ter, uncle,  aunt,  or  descendant  of  an  uncle  or  aunt.'^^ 
If  the  deceased  leaves  a  widow,  the  real  estate  is 
taken  subject  to  her  rights.-'®  If  the  deceased  leaves  a 
husband,  to  whom  a  child  was  bom  alive,  the  real 
estate  is  taken  subject  to  the  husband's  right  of 
curtesy,  ^^ 

Where  grandchildren  of  great-great-uncles  and 
aunts  are  not  excluded  as  above,  their  ability  to  in- 
herit is  determined  by  the  rules  of  the  common  law 
hereinbefore  given,^*^  unless  the  inheritance  came  to 
the  intestate  from  a  deceased  husband  or  wife.^^ 

§  6.  Grandchildren  of  Great-great-uncles  and  aunts 
take  Personal  Estate. —  Grandchildren  of  great-great- 

17  R.  p.  Law,  §§  281-290. 

18  For  the  rights  of  a  Avidow,  see  Widow,  p.  30. 

19  See  Husband,  p.  35. 

20  R.  P.  Law,  §  29L  See  rules  given  under  Great-uncles  and 
Great-aunts,  p.  98. 

21  If  so,  it  descends  to  the  heirs  of  such  deceased  husband 
or  wife.    R.  P.  Law,  §  290a. 


OF  GREAT-GREAT-UNCLES  AND  AUNTS,  ETC.   113 

uncles  and  aunts  take  no  portion  of  the  personal  estate 
of  a  deceased  if  such  deceased  leaves^^  any  descendant, 
husband,  widow,  parent,  grandparent,  great-grand- 
parent, great-great-grandparent,  brother,  sister,  de- 
scendant of  brother  or  sister,  uncle,  aunt,  descendant 
of  uncle  or  aunt,  great-uncle  or  aunt,  or  descendant 
of  great-uncle  or  aunt.^ 

ISTeither  can  thej  take  if  their  parent  (being  a  child 
of  a  great-great-uncle  or  aunt)  or  grandparent  (being 
a  great-great-uncle  or  aunt  of  the  deceased)  be  living. 

Where  grandchildren  of  great-great-uncles  and 
aunts  are  not  excluded  as  above,  they  take  or  share 
in  the  personal  estate  of  the  deceased  as  follows:^ 

(1.)  If  the  deceased  leaves  no  great-great-uncle  or 
aunt,  or  child  of  a  great-great-uncle  or  aunt, 
grandchildren  of  great-great-uncles  and  aunts 
take  in  equal  portions ;  deceased  grandchildren 
of  great-great-uncles  and  aunts,  who  have  de- 
scendants living,  being  counted  for  the  purpose 
of  division  as  themselves  living. 

(2.)  If  the  deceased  leaves  a  child  of  a  great-great- 
uncle  or  aunt,  but  no  great-great-uncle  or  aunt, 
the  grandchildren  of  great^-great-uncles  or  aunts, 
who  are  children  of  a  deceased  child  of  a  great- 

22  See  notes  under  head  of  various  relatives  named. 

23  Code,  •§  2732,  subds.  5,  12.     See  note  38,  p.  63. 

24  Id. 


114  IIS^TESTATE    SUCCESSION    IN    NEW    YOKK. 

great-uncle  or  aunt,  take  in  equal  portions  (de- 
ceased grandchildren  of  great-great-uncles  or 
aunts,  who  have  descendants  living,  being- 
counted  for  the  purpose  of  division  as  them- 
selves living)  the  share  their  parent  would 
have  taken  if  living ;  w'hich  would  he  such  por- 
tion as  would  come  to  the  parent  upon  the  equal 
division  among  the  children  of  great-great-uncles 
and  aunts ;  deceased  children  of  great-great 
uncles  and  aunts,  who  have  descendants  living, 
being  counted  for  the  purpose  of  division  as 
themselves  living. 

( 3. )  If  the  deceased  leaves  a  great-great-uncle  or 
aunt,  the  grandchildren  of  great-great-uncles  or 
aunts,  who  are  not  excluded  bj  a  living  ancestor 
as  above,  take  or  share  in  by  representation  the 
share  their  grandparent  (a  great-great-uncle  or 
aunt  of  the  deceased)  would  have  taken  if  liv- 
ing ;  which  would  be  such  portion  as  would  come 
to  such  grandparent  upon  an  equal  division 
among  the  great-great-uncles  and  aunts :  de- 
ceased great-great-uneles  and  aunts,  w^ho  have 
descendants  living,  being  counted  for  the  pur- 
pose of  division  as  themselves  living, 

§  7.  Third  Cousins  take  Real  Estate. —  Third 
cousins  inherit  no  portion  of  the  real  estate  of  a  de- 
ceased if  such  deceased  leaves  any  descendant,  parent. 


OF  GREAT-GREAT-UXCLES  AXD  ALXT8,    ETC.        115 

brother,  sister,  or  descendant  of  a  brother  or  sister, 
nnele,  aunt,  or  descendant  of  an  uncle  or  aunt.^"^  If 
the  deceased  leaves  a  widow  the  real  estate  is  taken 
subject  to  her  rights.^^  If  the  deceased  leaves  a  hus- 
band, to  whom  a  child  was  born  alive,  the  real  estate 
is  taken  subject  to  the  husband's  right  of  curtesy."^ 
^^^lere  third  cousins  are  not  excluded,  as  above, 
their  ability  to  inherit  is  determined  by  the  rules  of 
the  common  law  hereinbefore  given,^  unless  the  in- 
heritance came  to  the  intestate  from  a  deceased  hus- 
band or  wife.^ 

g  8.  Third  Cousins  take  Personal  Estate. —  Third 
cousins  take  no  portion  of  the  personal  estate  of  a 
deceased,  if  such  deceased  leaves^  any  descendant, 
luisband,  Avidow,  parent,  grandparent,  great-grand- 
parent, great-great-grandparent,  brother,  sister,  de- 
scendant of  brother  or  sister,  uncle,  aunt,  descendant 
of  uncle  or  aunt,  great-uncle  or  aunt,  or  descendant 
of  great-uncle  or  aunt.^^ 

^N'either  can  they  take  if  their  parent  (being  a 
grandchild   of   a  great-great-uncle  or   aunt),   grand- 

25  R.  p.  Law,  §§  281-200. 

-C  For  the  rights  of  a  widow,  see  Widow,  p.  .30.  §  1. 

27  See  Husband,  p.  3.5.  §  3. 

28  R.  p.  Law,  §  201.  See  rules  given  under  Great-uncles  and 
rireat-ainits,  p.  OS. 

29  If  so,  it  descends  to  the  heirs  of  such  husband  or  wife. 
R.  P.  Law,  §  290a. 

^'^  See  notes  under  head  of  various  relatives  named. 
-1  Code,  §  2732,  subds.  .5,  12.     See  note  38,  p.  63. 


116  INTESTATE    SUCCESSION    IN    NEW    YORK, 

parent  (being  a  child  of  a  great-great-uncle  or  aunt), 
or  great-grandparent  (being  a  great-great-uncle  or 
aunt  of  deceased)  be  living. 

Where  third  cousins  are  not  excluded,  as  above, 
they  take  or  share  in  the  personal  estate  of  the  de- 
ceased, as  follows  :^^ 

(1.)  If  the  deceased  leaves  no  great-great-uncle  or 
aunt,,  child  of  a  great-great-uncle  or  aunt,  or 
grandchild  of  a  great-great-uncle  or  aunt,  third 
cousins  take  in  equal  portions ;  deceased  third 
cousins,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  themselves 
living. 

(2.)  If  the  deceased  leaves  a  grandchild  of  great- 
great-uncle  or  aunt  but  no  great-great-uncle  or 
aunt,  or  child  of  a  great-great-uncle  or  aunt, 
third  cousins,  who  are  not  excluded  by  living 
ancestors  as  above,  take  in  equal  portions  (de- 
ceased grandchildren  of  great-great-uncles  and 
aunts,  who  have  descendants  living,  being 
counted  for  the  purpose  of  division  as  them- 
selves living)  the  share  their  parent  would  have 
taken  if  living;  which  would  be  such  portion  as 
would  come  to  their  parent  upon  the  equal  divi- 
sion among  the  grandchildren  of  great-great- 
uncles  and  aunts ;  deceased  grandchildren  of 
great-great-uncles  and  aunts,  who  have  descend- 

32  Code  Civ.  Pro.  §  2732,  subds.  5,  10,  12.     See  note  38,  p.  63. 


OF  GREAT-GKEAT-UNCLES  AND  AUNTS,  ETC.   117 

aiits  living,  being  counted  for  the  purpose  of  di- 
vision as  thenaselves  living, 

(3.)  If  the  deceased  leaves  a  child  of  a  great-great- 
uncle  or  aunt  but  no  great-great-uncle  or  aunt, 
third  cousins,  who  are  not  excluded  by  a  living 
ancestor  as  above,  take  or  share  in  by  represen- 
tation the  portion  their  grandparent  (a  child  of 
a  great-great-uncle  or  aunt)  M^ould  have  taken  if 
living;  which  would  be  such  portion  as  would 
come  to  their  grandparent  upon  the  equal  divi- 
sion among  the  children  of  the  great-great- 
uncles  and  aunts ;  deceased  great-great-uncles 
and  aunts,  who  have  descendants  living,  "being 
counted  for  the  purpose  of  division  as  themselves 
living. 

(4.)  If  the  deceased  leaves  a  great-grpat-uncle  or 
aunt,  third  cousins,  who  are  not  excluded  by  a 
living  ancestor  as  above,  take  or  share  in  by 
representation  the  portion  their  great-grand- 
parent (a  great-great-uncle  or  aunt  of  the  de- 
ceased) would  have  taken  if  living ;  which  would 
be  such  portion  as  would  Ciime  to  their  great- 
grandparent  upon  the  equal  division  among  the 
great-great-uncles  and  aunts ;  deceased  great- 
great-uncles  and  aunts,  who  have  descendants 
living,  being  counted  for  the  purpose  of  division 
as  themselves  living. 


CHx\PTEE  X. 

OF  THE  POSSESSION  AND  ENJOYMENT  OF  THE  PROP- 
ERTY TAKEN. 

§  1.  Real  Estate. 

2.  Possession  and  inventory  of  Personal   Estate. 

3.  Payment  for  support  and  education. 

4.  Payment  after  one  year. 

5.  Payment  after  accounting. 

6.  Recovery  by  action. 

§  1.  Real  Estate. —  The  title  to  real  estate^  vests, 
and  the  right  to  the  possession  and  enjoyment  of  the 
same  becomes  fixed  upon  the  death  of  the  intestate. 
If,  however,  the  personal  property  be  insufficient,  the 
real  estate  may  be  sold  to  pay  the  debts  and  funeral 
expenses  of  the  deceased,  except  where  the  real  estate 
is  devised  expressly  charged  with  the  payment  of 
debts  or  funeral  expenses,  or  is  exempt  from  levy  and 
sale  by  virtue  of  an  execution.' 

§  2.  Possession  and  Inventory  of  Personal  Estate. — 
The  executor  or  administrator,  as  the  case  may  be, 

1  As  to  what  is  real  estate,  see  R.  P.  Law,  §  280,  given  in 
Appendix  A.  As  to  what  is  personal  estate,  see  Code,  §  2712, 
given  in  a  note  to  the  next  section  of  this  chapter. 

2  Code  Civ.  Pro.  §  2741). 

[118] 


OF   POSSESSION,    ETC.,    OF   TKOPEKTY   TAKEX.        119 

is  entitled  to  the  exclusive  possession  of  ail  the  per- 
sonal estate''  of  the  deceased. 

Within  a  reasonable  time  after  qualifying,  the  ex- 
ecutor or  administrator  is  required  to  make,  in  dupli- 
cate, an  inventory  of  the  personal  estate,'*  showing 

3  As  to  what  constitutes  personal  estate  see  next  note. 

4  Code  Civ.  Pro.  §  2712.  [Am'd  1893.]  The  following  shall 
be  deemed  assets  and  go  to  the  executors  or  administrators,  ta 
be  applied  and  distributed  as  part  of  the  personal  property  of 
the  testator  or  intestate,  and  be  included  in  the  inventory: 

1.  Leases  for  years;  lands  held  by  the  deceased  from  year 
to  year ;  and  estates  held  by  him  for  the  life  of  another  person. 

2.  The  interest  remaining  in  him,  at  the  time  of  his  death, 
in  a  term  of  years  after  the  expiration  of  any  estate  for  years 
therein  granted  by  him  or  any  other  person. 

3.  Tlie  interest  in  lands  devised  to  an  executor  for  a  term  of 
years  for  the  payment  of  debts. 

4.  Tilings  annexed  to  the  freehold,  or  to  any  building  for 
the  purpose  of  trade  or  manufacture,  and  not  fixed  into  th« 
wall  of  a  house  so  as  to  be  essential  to  its  support. 

5.  The  crops  growing  on  the  land  of  the  deceased  at  the 
time  of  his  death. 

6.  Eveiy  kind  of  produce  raised  annually  by  labor  and  cul- 
tivation, except  growing  grass  and  fruit  ungathered. 

7.  Rent  reserved  to  the  deceased  which  had  accrued  at  the 
time  of  his  death. 

8.  Debts  secured  by  mortgages,  bonds,  notes  or  bills ;  ac- 
counts, money,  and  bank  bills,  or  other  circulating  medium, 
things  in  action,  and  stock  in  any  corporation  or  joint-stock 
association. 

9.  Goods,  wares.,  merchandise,  utensils,  furniture,  cattle,  pro- 
visions, moneys  unpaid  on  contracts  for  the  sale  of  lands  and 
every  other  species  of  personal  property  not  hereinafter  ex- 


220  INTESTATE    SUCCESSION    IN    NEW    YORK. 

the  appraised  value  of  the  various  items  mentioned 
therein,  except  such  as  the  law  has  set  apart  for  the 
use  of  the  widow  and  minor  children.^  One  of  such 
duplicates  must  be  filed  with  the  surrogate  before  the 
expiration  of  three  months  from  the  date  of  the  let- 
ters granted  to  the  executor  or  administrator.^ 

§  3.  Payment  for  support  and  education Where 

the  payment  or  satisfaction  of  a  legacy,  pecuniary 
provision  or  distributive  share,  or  some  part  thereof, 
is  necessary  for  the  support  or  education  of  a  claim- 
ant, the  surrogate  in  certain  cases  may,  in  his  discre- 
tion, at  any  time  after  granting  letters,  direct  pay- 
ment or  satisfaction  accordingly,  upon  the  filing  of 
a  bond,  approved  by  him,  conditioned  tO'  refund  the 
money  if,  in  justice  to  others,  it  should  become  neces- 
sary.' In  order  to  entitle  a  claimant  to  such  an  ad- 
vanced payment,  the  validity  and  legality  of  his  claim 
must  be  undisputed  by  the  executor  or  administrator. 
He  must  show  to  the  satisfaction  of  the  surrogate  that 

cepted.  Things  annexed  to  the  freehold,  or  to  a  building,  shall 
not  go  to  the  executor,  but  shall  descend  with  the  freehold  to 
the  heirs  or  devisees,  except  such  fixtures  as  are  mentioned 
in  the  fourth  subdivision  of  this  section.  The  right  of  an 
heir  to  any  property,  not  enumerated  in  this  section,  which  by 
the  common  law  would  descend  to  him,  is  not  impaired  by 
the  general  terms  of  this  section. 

5  See  Widow,  Personal  Estate,  p.  32;  Code,  §  2713. 

6  Code,  §  271.5. 

7  Code  Civ.  Pro.  §  2723. 


OF   POSSESSION,    ETC.,    OF  PROPERTY   TAKEN.        121 

there  is  money  or  other  personal  plroperty  of  the  es- 
tate, applicable  to  the  payment  or  satisfaction  of  the 
claim,  and  which  may  be  applied  without  injuriously 
affecting  the  rights  of  others  entitled  to  priority  or 
equality  of  payment  or  satisfaction.^  He  must  also 
show  that  the  amount  of  the  money  and  the  value  of 
the  other  property  in  the  hands  of  the  executor  or 
administrator,  applicable  to  the  payment  of  debts, 
legacies  and  expenses,  exceed  by  at  least  one-third, 
the  amount  of  all  known  debts  and  claims  against  the 
estate,  of  all  legacies  which  are  entitled  to  priority 
over  the  demands  of  the  claimant,  and  of  all  legacies 
or  distributive  shares  of  the  same  class.* 

§  4.  Payment  after  one  year. — At  any  time  after 
the  expiration  of  one  year  from  the  granting  of  let- 
ters to  an  executor  or  administrator,  persons  entitled 
to  share  in  the  personal  estate  and  legatees  may  apply 
to  the  surrogate  for  a  decree  directing  the  payment 
of  their  claims.^"  Upon  such  an  application,  if 
the  validity  or  legality  of  the  claim  is  not  disputed  by 
the  executor  or  administrator,  the  claimant  must 
prove  to  the  satisfaction  of  the  surrogate  that  there 
is  money  or  other  personal  property  of  the  estate  ap- 
plicable to  the  payment  or  satisfaction  of  the  claim 
and  which  may  be  so  applied  without  injuriously  af- 

8  Code  Civ.  Pro.  §  2722. 

9  Code  Civ.  Pro.  §  2723. 

10  Code  Civ.  Pro.  §  2722. 


122  INTESTATE    SUCCESSION    IN    NEW    YOKK. 

fecting  the  rights  of  others  entitled  to  priority  or 
equality  of  payment  or  satisfaction.  Thereupon  the 
surrogate  may,  if  justice  requires,  order  the  payment 
of  the  whole  or  such  part  of  the  claim  as  is  proper 
under  the  circumstances.^^ 

If,  however,  the  executor  or  administrator  dis- 
putes the  validity  and  legality  of  the  claim,  the  claim- 
ant is  put  to  an  action  or  an  accounting.^' 

§  5.  Payment  after  accounting. — After  the  expira- 
tion of  one  year  from  the  granting  of  letters,  an  ex- 
ecutor or  administrator,  on  the  application  of  an  in- 
terested person,  may  be  compelled,  in  the  discretion 
of  the  surrogate,  to  render  an  account  of  his  proceed- 
ings for  judicial  settlement. ^^  After  the  expiration 
of  eighteen  months  from  the  granting  of  letters,  the 
surrogate  must  issue  a  citation  to  an  executor  or  ad- 
ministrator for  an  accounting  and  judicial  settlement 
of  his  accounts  on  the  proper  application.^*  ^V^len 
an  account  is  judicially  settled  and  any  part  of  the 
estate  remains  and  is  ready  to  be  distributed,  the  de- 
cree must  direct  the  payment  and  distribution  thereof 
to  the  persons  entitled  thereto,  according  to  their  re- 
spective rights.^^ 

11  Id. 

12  Id. 

13  Code  Civ.  Pro.  §  2726. 
i-tCode  Civ.  Pro.  §  2727. 
IB  Code  Civ.  Pro.  §  2743. 


Ol-    I'USSESSIOX,    ETC.,   OF   PROPERTY  TAKEX.        123 

§  6,  Recovery  by  action. —  If,  after  the  expiration 
of  one  year  from  the  granting  of  letters  testamen- 
tarv  or  letters  of  administration,  an  executor  or  ad- 
ministrator refuses,  upon  demand,  to  pay  a  legacy 
or  distributive  share,  the  person  entitled  thereto  may 
maintain  such  action  against  him  as  the  case  re- 
quires.^*' 

16  Code  Civ.  Tro.  §   1819. 


APPENDIX  A. 


STATUTE  OF  DESCENT. 

[XoTE. —  The  present  statute  of  descent  is  Article  IX  of  the 
Real  Proi>erty  Law,  being  chapter  547,  Laws  of  1896.  It  took 
effect  October  1,  1896.  This  article  takes  the  place  of  chapter 
II  of  part  II  of  the  New  York  Revised  Statutes,  1  R.  S.  751- 
755,  which  took  effect  January  1,  1830.] 


AKTICLE  IX. 

THE  DESCENT  OF  REAL  PROPERTY. 

280.  Definitions  and  use  of  terms;  effect  of  article. 

281.  General  rule  of  descent. 

282.  Lineal  descendants  of  equal  degree. 

283.  Lineal  descendants  of  unequal  degree. 

284.  When  father  inherits. 

285.  When  mother  inherits. 

286.  When  collateral   relatives    inherit;    collateral   rela- 

tives of  equal  degrees. 

287.  Brothers  and  sisters  and  their  descendants. 

288.  Brothers  and  sisters  of  father  and  mother  and  their 

descendants. 

289.  Illegitimate  children. 

290.  Relatives  of  the  half-blood. 
290a.  Relatives  of  husband  or  wife. 

201.  Cases  not  hereinbefore  provided  for. 

202.  Posthumous  children  and  relatives. 

[125] 


126  APPENDIX. 

§  293.  Inheritance,  sole  or  in  coninion. 

294.  Alienism  of  ancestor. 

295.  Advancements. 

296.  How  advancements  adjusted. 

§  280.  Definitions  and  use  of  terms;  effect  of  article. 
—  The  term  "  real  property  "  as  i^sed  in  tins  article, 
includes  every  estate,  interest  and  right,  legal  and 
equitable  in  lands,  tenements  and  hereditaments  ex- 
cept such  as  are  determined  or  exting-uished  by  the 
death  of  an  intestate  seized  or  possessed  thereof,  or  in 
any  manner  entitled  thereto ;  leases  for  years,  estates 
for  the  life  of  another  person ;  and  real  property  held 
in  trust,  not  devised  by  the  beneficiary.  "  Inheri- 
tance "  means  real  property  as  herein  defined,  de- 
scended according  to  the  provisions  of  this  article ; 
the  expressions  "  where  the  inheritance  shall  have 
come  to  the  intestate  on  the  part  of  the  father  "  or 
'•'  molher,"  as  the  case  may  be,  include  every  case 
where  the  inheritance  shall  have  come  to  the  intestate 
by  devise,  gift  or  descent  from  the  parent  referred  to, 
or  from  any  relative  of  the  blood  of  such  parent. 
When  in  this  article  a  person  is  described  as  living, 
it  means  living  at  the  time  of  the  death  of  the  intes- 
tate from  whom  the  descent  came;  when  he  is  de- 
scribed as  having  died,  it  means  that  he  died  before 
such  intestate.  This  article  does  not  affect  a  limi- 
tation of  an  estate  by  deed  or  will,  or  tenancy  by  the 
curtesy  or  dower. 


APrEM)ix.  127 

§  281.  General  rule  of  descent. —  The  real  property 
of  a  person  who  dies  without  devising  the  same  shall 
descend : 

1.  To  his  lineal  descendants. 

2.  To  his  father. 

3.  To  his  mother ;  and 

4.  To  his  collateral  relatives,  as  prescribed  in  the 
following  sections  of  this  article. 

§  282.  Lineal  descendants  of  equal  degree. —  If  the 
intestate  leave  descendants  in  the  direct  line  of  lineal 
descent,  all  of  equal  degree  of  consanguinity  to  him, 
the  inheritance  shall  descend  to  them  in  equal  parts 
however  remote  from  him  the  common  degree  of  con- 
sanguinity may  be. 

§  283.  Lineal  descendants  of  unequal  degree —  If 

any  of  the  descendants  of  such  intestate  be  living,  and 
any  be  dead,  the  inheritance  shall  descend  to  the  liv- 
ing, and  the  descendants  of  the  dead,  so  that  each 
living  descendant  shall  inherit  such  share  as  would 
have  descended  to  him  had  all  the  descendants  in  the 
same  degree  of  consanguinity  who  shall  have  died 
leaving  issue  been  living;  and  so  that  issue  of  the 
descendants  who  shall  have  died  shall  respectively 
take  the  shares  which  their  ancestors  would  have  re- 
ceived. 

§  284.  When  father  inherits. —  If  the  intestate  die 
without  lawful  descendants,  and  leave  a  father,  the 


128  APPENDIX. 

inheritance  shall  go  to  such  father,  unless  the  inheri- 
tance came  to  the  intestate  on  the  part  of  his  mother, 
and  she  be  living ;  if  she  be  dead,  the  inheritance  de- 
scending on  her  part  shall  go  to  the  father  for  life, 
and  the  reversion  to  the  brothers  and  sisters  of  the 
intestate  and  their  descendants,  according  to  the  law 
of  inheritance  by  collateral  relatives  hereinafter  pro- 
vided ;  if  there  be  no  such  brothers  or  sisters  or  their 
descendants  living,  such  inheritance  shall  descend  to 
the  father  in  fee. 

§  285.  When  mother  inherits. —  If  the  intestate  die 
without  descendants  and  leave  no  father,  or  leave  a 
father  not  entitled  to  take  the  inheritance  under  the 
last  section,  and  leave  a  mother,  and  a  brother  or  sis- 
ter, or  the  descendant  of  a  brother  or  sister,  the  in- 
heritance shall  descend  to  the  mother  for  life,  and 
the  reversion  to  such  brothers  and  sisters  of  the  intes- 
tate as  may  be  living,  and  the  descendants  of  such  as 
may  be  dead,  according  to  the  same  law  of  inheri- 
tance hereinafter  provided.  If  the  intestate  in  such 
case  leave  no  brother  or  sister  or  descendant  thereof, 
the  inheritance  shall  descend  to  the  mother  in  fee. 

§  286.  When  collateral  relatives  inherit;  collateral 
relatives  of  equal  degrees. —  If  there  be  no  father  or 
mother  capable  of  inheriting  the  estate,  it  shall  de- 
scend in  the  cases  hereinafter  specified  to  the  col- 
lateral relatives  of  the  intestate ;  and  if  there  be  sev- 
eral such  relatives,  all  of  equal  degree  of  consan- 


APPENDIX.  129 

guinity  to  the  intestate,  the  inheritance  shall  descend 
to  them  in  equal  parts,  however  remote  from  him  the 
common  degree  of  consanguinity  may  be. 

§  287.  Brothers  and  sisters  and  their  descendants. 
—  If  all  the  brothers  and  sisters  of  the  intestate  be 
living,  the  inheritance  shall  descend  to  them;  if  any 
of  them  be  living  and  any  be  dead,  to  the  brothers 
and  sisters  living,  and  the  descendants,  in  whatever 
degree,  of  those  dead ;  so  that  each  living  brother  or 
sister  shall  inherit  such  share  as  would  have  de- 
scended to  him  or  her  if  all  the  brothers  and  sisters 
of  the  intestate  who  shall  have  died,  leaving  issue,  had 
been  living,  and  so  that  such  descendants  in  whatever 
degree  shall  collectively  inherit  the  share  which  their 
parents  would  have  received  if  living;  and  the  same 
rule  shall  prevail  as  to  all  direct  lineal  descendants 
of  every  brother  and  sister  of  the  intestate  whenever 
such  descendants  are  of  unequal  degrees. 

§  288.  Brothers  and  sisters  of  father  and  mother  and 
their  descendants. —  If  there  be  no  heir  entitled  to 
take,  under  either  of  the  preceding  sections,  the  in- 
heritance, if  it  shall  have  come  to  the  intestate  on  the 
part  of  his  father,  shall  descend : 

1.  To  the  brothers  and  sisters  of  the  father  of  tue 
intestate  in  equal  shares,  if  all  be  living. 

2.  If  any  be  living,  and  any  shall  have  died,  leav- 
ing issue,  to  such  brothers  and  sisters  as  shall  be  liv- 
ing and  to  the  descendants  of  such  as  shall  have  died. 

9 


130  APPENDIX. 

3.  If  all  such  brothers  and  sisters  shall  have  died, 
to  their  descendants. 

4.  If  there  be  no  such  brothers  or  sisters  of  such 
father,  nor  any  descendants  of  such  brothers  or  sis- 
ters, to  the  brothers  and  sisters  of  the  mother  of  the 
intestate,  and  to  the  descendants  of  such  as  shall  have 
died,  or  if  all  have  died,  to  their  descendants.  But, 
if  the  inheritance  shall  have  come  to  the  intestate  on 
the  part  of  his  mother,  it  shall  descend  to  her  broth- 
ers and  sisters  and  their  descendants ;  and  if  there  be 
none,  to  the  brothers  and  sisters  of  the  father  and 
their  descendants,  in  the  manner  aforesaid.  If  the 
inheritance  has  not  come  to  the  intestate  on  the  part 
of  either  father  or  mother,  it  shall  descend  to  the 
brothers  and  sisters  both  of  the  father  and  mother 
of  the  intestate,  and  their  descendants  in  the  same 
manner.  In  all  cases  mentioned  in  this  section  the 
inheritance  shall  descend  to  the  brothers  and  sisters 
of  the  intestate's  father  or  mother,  as  the  case  may  be, 
or  to  their  descendants  in  like  manner  as  if  they  had 
been  the  brothers  and  sisters  of  the  intestate. 

§  289.  Illegitimate  children. —  If  an  intestate  Avho 
shall  have  been  illegitimate  die  without  lawful  issue, 
or  illegitimate  issue  entitled  to  take,  under  this  sec- 
tion, the  inheritance  shall  descend  to  his  mother ;  if 
she  be  dead,  to  his  relatives  on  her  part,  as  if  he  had 
been  legitimate.     If  a  woman  die  without  lawful  is- 


To  face  page  130  Remsen  on  Intestate  Succession,  4th  Edition. 

Grandparents  take  Real  Estate. —  By  an  Act  (L.  1904. 
ch.  106)  which  was  passed  and  took  effect  after  this  book  was 
printed,  March  22,  1904,  a  new  subdivision  was  added  to  §  288 
of  Real  Property  Law,  whereby  grandparents  are  now  enabled 
to  inherit  real  estate.     That  subdivision  reads  as  follows: 

§  288,  subd.  "  5.  If  there  be  no  svich  brothers  or  sisters  of 
such  fatlier  or  mother,  nor  any  descendants  of  such  brothers 
or  sisters,  the  inheritance,  if  it  shall  have  come  to  the  intestate 
on  the  part  of  his  father,  shall  descend  to  his  father's  parents, 
then  living,  in  equal  parts,  and  if  they  be  dead,  then  to  his 
mother's  parents,  then  living,  in  equal  parts ;  but  if  the  in- 
heritance shall  have  come  to  the  intestate  on  the  part  of  his 
mother,  it  shall  descend  to  his  mother's  parents,  then  living, 
in  equal  parts,  and  if  they  be  dead,  to  his  father's  parents, 
then  living,  in  equal  parts.  If  the  inheritance  has  not  conn? 
to  the  intestate  on  the  part  of  either  father  or  mother,  it  shall 
descend  to  his  living  grandparents  in  equal  parts." 

By  the  foregoing  amendment  a  living  grandparent  excludes 
great-uncles  and  aunts,  children  of  great-uncles  and  aunts, 
second  cousins,  children  of  second  cousins,  great-great  uncles 
and  aunts,  children  of  great-great  uncles  and  aunts,  grand- 
children of  great-great  uncles  and  aunts  and  third  cousins. 


APPEXDIX.  13l 

sue,  leaving  an  illegitimate  child,  the  inheritance 
shall  descend  to  him  as  if  he  were  legitimate.  In  any 
other  case  illegitimate  children  or  relatives  shall  not 
inherit. 

§  290.  Relatives  of  the  half-blood. —  Relatives  of 
the  half-blood  and  their  descendants,  shall  inherit 
equally  with  those  of  the  whole  blood  and  their  de- 
scendants, in  the  same  degree,  unless  the  inheritance 
came  to  the  intestate  by  descent,  devise  or  gift  from 
an  ancestor;  in  which  case  all  those  who  are  not  of 
the  blood  of  such  ancestor  shall  be  excluded  from  such 
inheritance. 

§  290a.  Relatives  of  husband  or  wife. —  Wlien  the 
inheritance  shall  have  come  to  the  intestate  from  a 
deceased  husband  or  wife,  as  the  case  may  be,  and 
there  be  no  person  entitled  to  inherit  under  any  of 
the  preceding  sections,  then  such  real  property  of 
such  intestate  shall  descend  to  the  heirs  of  such  de- 
ceased husband  or  wife,  as  the  case  may  be,  and  the 
persons  entitled,  under  the  provisions  of  this  section, 
to  inherit  such  real  property,  shall  be  deemed  to  be 
the  heirs  of  such  intestate,  {.idded  by  ch.  481  of 
L.  1901.) 

§  291.  Cases  not  hereinbefore  provided  for. —  In  all 
cases  not  provided  for  by  the  preceding  sections  of 
this  article,  the  inheritance  shall  descend  according 
to  the  course  of  the  common  law. 


i32  APPENDIX. 

§  292.  Postliumous  children  and  relatives. — ^A  de- 
scendant or  a  relative  of  the  intestate  begotten  before 
his  death,  but  born  thereafter,  shall  inherit  in  the 
same  manner  as  if  he  had  been  bom  in  the  lifetime 
of  the  intestate  and  had  survived  him. 

§  293.  Inheritance,  sole  or  in  common. —  When 
there  is  but  one  person  entitled  to  inherit,  he  shall 
take  and  hold  the  inheritance  solely ;  when  an  inheri- 
tance or  a  share  of  an  inheritance  descends  to  several 
persons  they  shall  take  as  tenants  in  common,  in  pro- 
portion to  their  respective  rights. 

§  294.  Alienism  of  ancestor. — A  person  capable  of 
inheriting  under  the  provisions  of  this  article,  shall 
not  be  precluded  from  such  inheritance  by  reason  of 
the  alienism  of  an  ancestor. 

§  295.  Advancements. —  If  a  child  of  an  intestate 
shall  have  been  advanced  by  him,  by  settlement  or 
portion,  real  or  personal  property,  the  value  thereof 
must  be  reckoned  for  the  purposes  of  descent  and  dis- 
tribution as  part  of  the  real  and  personal  property  of 
the  intestate  descendible  to  his  heirs  and  to  be  distrib- 
uted to  his  next  of  kin ;  and  if  such  advancement  be 
equal  to  or  greater  than  the  amount  of  the  share  which 
such  child  would  be  entitled  to  receive  of  the  estate 
of  the  deceased,  such  child  and  his  descendants  shall 
not  share  in  the  estate  of  the  intestate;  but  if  it  be 
less  than  such  share,  such  child  and  his  descendants 


APPENDIX.  133 

shall  receive  so  iniieli,  only,  of  the  personal  property, 
and  inherit  so  much  only,  of  the  real  property,  of  the 
intestate,  as  shall  be  sufficient  to  make  all  the  shares 
of  all  the  children  in  the  whole  property,  including 
the  advancement,  equal.  The  value  of  any  real  or 
personal  property  so  advanced,  shall  be  deemed  to  be 
that,  if  any,  which  was  acknowledged  by  the  child 
by  an  instrument  in  writing;  otherwise  it  must  be 
estimated  according  to  the  worth  of  the  property  when 
given.  Maintaining  or  educating  a  child,  or  giving 
him  money  without  a  view  to  a  portion  or  settlement 
in  life  is  not  an  advancement.  An  estate  or  interest 
given  by  a  parent  to  a  descendant  by  virtue  of  a  bene- 
ficial power,  or  of  a  power  in  trust,  with  a  right  of 
selection,  is  an  advancement. 

§  296.  How  advancements  adjusted. —  When  an  ad- 
vancement to  be  adjusted  consisted  of  real  property, 
the  adjustment  must  be  made  out  of  the  real  property 
descendible  to  the  heirs.  When  it  consisted  of  per- 
sonal property,  the  adjustment  must  be  made  out  of 
the  surplus  of  the  personal  property  to  be  distributed 
to  the  next  of  kin.  If  either  species  of  property  is 
insufficient  to  enable  the  adjustment  to  be  fully  made, 
the  deficiency  must  be  adjusted  out  of  the  other. 


APPENDIX  B. 


STATUTE  OF   DISTRIBUTION. 

[Note. —  The  "  Statute  of  Distribution,"  so-called,  was  a 
portion  of  Article  2,  Title  III,  Chapter  VI,  Part  II,  of  the 
New  York  Revised  Statutes,  and  was  cited  as  2  R.  S.  96-98, 
the  pages  being  those  of  the  original  and  only  official  edition. 
This  portion  of  the  Revised  Statutes  took  effect  January  1, 
1830,  and  remained  unaltered,  except  as  to  the  last  section 
given  below,  luitil  the  passage  of  L.  1893,  ch.  686,  which  took 
effect  May  31st  of  that  year.  By  that  act  the  statute  was 
slightly  changed  in  form,  and  it  became  a  part  of  the  Code 
of  Civil  Procedure,  §§  2732-2734.] 

§  2732.  [Am'd  1893.]  If  tlie  deceased  died  intes- 
tate, the  surplus  of  his  personal  property  after  pay- 
ment of  debts ;  and  if  he  left  a  will,  such  surplus, 
after  the  payment  of  debts  and  legacies  if  not  be- 
queathed, must  be  distributed  to  his  widow,  children, 
or  next  of  kin,  in  manner  following : 

1.  One-third  part  to  the  widow,  and  tlie  residue 
in  equal  portions  among  the  children,  and  such  per- 
sons as  legally  represent  the  children  if  any  of  them 
have  died  before  the  deceased, 

2.  If  there  be  no  children,  nor  any  legal  repre- 
sentatives of  them,  then  one-half  of  the  whole  sur- 
plus shall  be  allotted  to  the  widow,  and  the  other  half 

[134] 


APPEIv^DIX.  135 

distributed  to  the  next  of  kin  of  the  deceased,  en- 
titled under  the  provisions  of  this  section. 

3.  If  the  deceased  leavesi  a  widow,  and  no  descend- 
ant, parent,  brother  or  sister,  nephew  or  niece,  the 
widow  shall  be  entitled  to  the  whole  surplus ;  but  if 
there  be  a  brother  or  sister,  nephew  or  niece,  and  no 
descendant  or  parent,  the  widow  shall  be  entitled  to 
one-half  of  the  surplus  as  above  provided,  and  to  the 
whole  of  the  residue  if  it  does  not  exceed  two  thou- 
sand dollars ;  if  the  residue  exceeds  that  sum,  she 
shall  receive  in  addition  to  the  one-half,  tAvo  thousand 
dollars ;  and  the  remainder  shall  be  distributed  to  the 
brothers  and  sisters  and  their  representatives. 

4.  If  there  be  no  widow,  the  whole  surplus  shall 
be  distributed  equally  to  and  among  the  children,  and 
such  as  legally  represent  them. 

5.  If  there  be  no  widow,  and  no  children,  and  no 
representatives  of  a  child,  the  whole  surplus  shall  be 
distributed  to  the  next  of  kin,  in  equal  degree  to  the 
deceased,  and  their  legal  representatives ;  and  if  all 
the  brothers  and  sisters  of  the  intestate  be  living,  the 
whole  surplus  shall  be  distributed  to  them ;  if  any  of 
them  be  living  and  any  be  dead,  to  the  brothers  and 
sisters  living,  and  the  descendants  in  whatever  degree 
of  those  dead ;  so  that  to  each  living  brother  or  sister 
shall  be  distributed  such  share  as  would  have  been 
distributed  to  him  or  her  if  all  the  brothers  and  sisters 
of  the  intestate  who  shall  have  died  leaving  issue  had 
been  living,  and  so  that  there  shall  be  distributed  to 


13  G  APPENDIX, 

such  descendants  in  whatever  degree,  collectively,  the 
share  which  their  parent  would  have  received  if  liv- 
ing; and  the  same  rule  shall  prevail  as  to  all  direct 
lineal  descendants  of  every  brother  and  sister  of  the 
intestate  whenever  such  descendants  are  of  unequal 
degrees.  [As  am'd,  L.  1903,  cli.  367;  ioolc  effect 
Sept.  1,  1903.] 

6.  If  the  deceased  leave  no  children  and  no  rep- 
resentatives of  them,  and  no  father,  and  leave  a  widow 
and  a  mother,  the  half  not  distributed  to  the  widow 
shall  be  distributed  in  equal  shares  to  his  mother  and 
brothers  and  sisters,  or  the  representatives  of  such 
brothers  and  sisters ;  and  if  there  be  no  Avidow,  the 
whole  surplus  shall  be  distributed  in  like  manner  to 
the  mother,  and  to  the  brothers  and  sisters,  or  the  rep- 
resentatives of  such  brothers  and  sisters. 

7.  If  the  deceased  leave  a  father  and  no  child  or 
descendant,  the  father  shall  take  one-half  if  there  be 
a  widow,  and  the  whole,  if  there  be  no  widow. 

8.  If  the  deceased  leave  a  mother  and  no  child, 
descendant,  father,  brother,  sister,  or  representative 
of  a  brother  or  sister,  the  mother,  if  there  be  a  widow, 
shall  take  one-half;  and  the  whole,  if  there  be  no 
wddow. 

9.  If  the  deceased  was  illegitimate  and  leave  a 
mother,  and  no  child,  or  descendant,  or  widow,  such 
mother  shall  take  the  whole  and  shall  be  entitled  to 
letters  of  administration  in  exclusion  of  all  other  per- 
sons.    If  the  mother  of  such  deceased  be  dead,  the 


APPENDIX.  137 

relatives  of  the  deceased  on  the  part  of  the  mother 
shall  take  in  the  same  manner  as  if  the  deceased  had 
been  legitimate,  and  be  entitled  to  letters  of  adminis- 
tration in  the  same  order. 

10.  Where  the  descendants,  or  next  of  kin  of  the 
deceased,  entitled  to  share  in  his  estate,  are  all  in 
equal  degree  to  the  deceased,  their  shares  shall  be 
equal. 

11.  When  such  descendants  or  next  of  kin  are  of 
nneqnal  degrees  of  kindred,  the  surplus  shall  be  ap- 
portioned among  those  entitled  thereto,  according  to 
their  respective  stocks  ;  so  that  those  who  take  in  their 
own  right  shall  receive  equal  shares,  and  those  who 
take  by  representation  shall  receive  the  share  to  which 
the  parent  whom  they  represent,  if  living,  would  have 
been  entitled. 

12.  Representation  shall  be  admitted  among  col- 
laterals in  the  same  manner  as  allowed  by  law  in 
reference  to  real  estate.  [.4s  aind,  L.  1898,  ch. 
319;  amendment  took  effect  Sept.  1,  1898.] 

13.  Relatives  of  the  half  blood,  shall  take  equally 
with  those  of  the  whole  blood  in  the  same  degree ; 
and  the  representatives  of  such  relatives  shall  take 
in  the  same  manner  as  the  representatives  of  the 
whole  blood. 

14.  Descendants  and  next  of  kin  of  the  deceased, 
begotten  before  his  death,  but  born  thereafter,  shall 
take  in  the  same  manner  as  if  they  had  been  born  in 
the  lifetime  of  the  deceased,  and  had  survived  him. 

15.  If  a  woman  die,  leaving  illegitimate  children. 


13S  APPENDIX. 

and  no  lawful  issue,  such  children  inherit  her  per- 
sonal property  as  if  legitimate.  [N'eiv.  L.  1897, 
ch.  37.] 

16.  If  there  be  no  husband  or  wife  surviving  and 
no  children,  and  no  representatives  of  a  child,  and  no 
next  of  kin,  then  the  whole  surplus  shall  be  distrib- 
uted equally  to  and  among  the  next  of  kin  of  the 
husband  or  wife  of  the  deceased,  as  the  case  may  be, 
and  such  next  of  kin  shall  be  deemed  next  of  kin  of 
the  deceased  for  all  the  purposes  specified  in  this 
chapter ;  but  such  surplus  shall  not,  and  shall  not  be 
construed  to,  embrace  any  personal  property  except 
such  as  was  received  by  the  deceased  from  such  hus- 
band or  wife,  as  the  case  may  be,  by  will  or  by  virtue 
of  the  laws  relating  to  the  distribution  of  personal 
property  of  the  deceased  person.  \_New.  L.  1901, 
ch.  410 ;  took  effect  Sept  1,  1901.] 

§  2733.  [Am'd  1893.]  If  any  child  of  such  de- 
ceased person  have  been  advanced  by  the  deceased,  by 
settlement  or  portion  of  real  or  personal  property,  the 
value  thereof  shall  be  reckoned  with  that  part  of  the 
surplus  of  the  personal  property,  which  remains  to 
be  distributed  among  the  children ;  and  if  such  ad- 
vancement be  equal  or  superior  to  the  amount,  which, 
according  to  the  preceding  section,  would  be  distrib- 
uted to  such  child,  as  his  share  of  such  surplus  and 
advancement,  such  child  and  his  descendants,  shall 
be  excluded  from  any  share  in  the  distribution  of 
such  surplus.  If  such  advancement  be  not  equal  to 
such  amount,  such  child  or  his  descendants  shall  be 


APPENDIX.  131) 

cntiTled  to  receive  so  much  only,  as  is  sufficient  to 
make  all  the  shares  of  all  the  children,  in  such  sur- 
plus and  advancement,  to  be  equal,  as  near  as  can  be 
estimated.  The  maintaining  or  educating,  or  the  giv- 
ing of  money  to  a  child,  without  a  view  to  a  portion 
or  settlement  in  life,  shall  not  be  deemed  an  advance- 
ment, within  the  meaning  of  this  section,  nor  shall 
the  foregoing  provisions  of  this  section  apply  in  any 
case  where  there  is  any  real  property  of  the  intestate 
to  descend  to  his  heirs.  Where  there  is  a  surplus 
of  personal  property  to  be  distributed,  and  the  ad- 
vancement consisted  of  personal  property,  or  where 
a  deficiency  in  the  adjustment  of  an  advancement  of 
real  property  is  chargeable  on  personal  property,  the 
decree  for  distribution,  in  the  surrogate's  court,  must 
adjust  all  the  advancements  which  have  not  been 
previously  adjusted  by  the  judgment  of  a  court  of 
competent  jurisdiction.  For  that  purpose,  if  any  per- 
son to  be  affected  by  the  decree,  is  not  a  party  to  the 
proceeding,  the  surrogate  must  cause  him  to  be 
brought  in  by  a  supplemental  citation. 

§  "2734.  [Atnd  1893.]  The  provisions  of  this 
article  respecting  the  distribution  of  property  of  de- 
ceased persons  apply  to  the  personal  property  of  mar- 
ried women  dying,  leaving  descendants  them  surviv- 
ing. The  husband  of  any  such  deceased  married 
woman  shall  be  entitled  to  the  same  distributive  share 
in  the  personal  property  of  his  wife  to  which  a  widow 
is  entitled  in  the  personal  property  of  her  husband 
by  the  provisions  of  this  article  and  no  more. 


INDEX. 


ACCOUXTIXG : 

after  expiration  of  one  year,  121. 
after  eighteen  months,   122. 

ADMINISTRATION: 

expenses  of,  to  be  first  paid,  20. 
ADMINISTRATOR.    See  Executor  or  Admixistratob. 
ADOPTED  CHILDREN: 

rights  of,  18. 

ADVANCEMENTS: 
what  are,  25. 
presumed,  25,  n. 
division  in  case  of,  25. 
effect  of,  on  devisable  estate,  25. 
when  to  be  bi'ought  into  hotchpot,  25. 
statute  of  distribution  as  to,  138. 
statute  of  descent  as  to,   132. 

AFFINITY : 

relationship  by,   10. 

ALIENAGE : 

of  ancestor,  efiect  of,   132. 

ALIENS : 

rights  of,  18. 

ability  to  inherit,  10. 

ability  to  transmit  by  descent,  132. 

ANCESTORS: 

number  of,   11. 

each  a  source  of  collaterals,  12. 

rights  of,  52. 

effect  of  alienage  of,  132. 

[141] 


142  INDEX. 

ASSETS : 

to  be  divided,  20. 

what  constitutes,  119,  >?.  4. 

AUNTS.    See  Uncles  and  Aunts. 

BROTHERS  AND  SISTERS: 
take  real  estate,  57. 
take  personal  estate,  58. 
statute  of  descent  as  to,  125. 
statute  of  distribution  as  to,   134. 
and  their  descendants,  rights  of,  57. 

CANONS  OF  DESCENT: 
common  law,  98. 

CATTLE : 

assets,  119,  n. 

CHART  OF  CONSANGUINITY,  10. 

CHILDREN: 

take  real  estate,  38. 
take  personal  estate,  39. 
statute  of  descent  as  to,  125. 

distribution  as  to,   134. 
minor,  entitled  to  use  of  certain  personal  property,  33,  39. 
rights  of  adopted,  18. 
rights  of  illegitimate,   16. 
rights  of  posthumous,   15. 
rights  of  post-testamentary,  14. 
of  cousins  take  real  estate,  82. 

take  personal  estate,  88. 
of  great-great-uncles  and  aunts  take  real  estate,  110. 

take  personal  estate,   110. 
of  great-uncles  and  aunts  take  real  estate,  100. 

take  personal  estate,   101. 
of  maternal  cousins  take  real  estate,  82. 
of  paternal  cousins  take  real  estate,  82. 
of  second  cousins  take  real  estate,  105. 

take  personal  estate,  105. 

CLAIMANTS : 

must   trace   relationship,    10. 


INDEX.  143 


COLLATERALS : 
mimber  of,   12. 
who  are,  IL 
tracing,    12. 

representation  among,   135-138. 
statute  of  descent  as  to,  127. 

COMMON  LAW: 

rules  of  descent,  98 

CONSANGUINITY: 

relationship  by,  10. 
degrees  of,   11. 
chart  of,  10. 

COUSINS : 

take  real  estate,  74. 

personal    estate,    76. 
statute  of  descent  as  to,   125. 
children  of,  take  real  estate,  82. 

take  personal  estate,  88. 
children  of  maternal,  take  real  estate,  82. 
cliildren  of  paternal,  take  real  estate,  82. 
children  of  second,  take  real  estate,   105. 

take  personal  estate,  105. 
grandchildren  of,  take  real  estate,  88. 

take  personal  estate,  95. 
grandchildren  of  maternal,  take  real  estate, 
grandchildren  of  paternal,  take  real  estate, 
second,  take  real  estate,  102. 

take  personal  estate,   103. 
third,  take  real  estate,   114. 

take  personal  estate,  115. 

CROPS: 

assets,  119,  n.  4. 

CURTESY : 

husband  entitled  to,  35. 

DEBTS: 

to  be  first  paid,  20. 


144  INDEX. 

DESCENDANTS : 
number  of,  12. 

rights  of,  38. 

statute  of  descent  as  to,   125. 

statute  of  distribution  as  to,   134. 

of  brothers  and  sisters,  rights  of,  57. 

of  uncles  and  aunts,  rights  of,   74. 

of  great-uncles  and  aunts,  rights  of,  97. 

of  great-great-uncles  and  aunts,  rights  of,  108. 

DESCENT: 

common-law  rules  of,  98. 
statute  of,  125. 

DEVISABLE  PROPERTY,  22. 

DISTRIBUTION : 

what  is  distributable,  20. 

after  one  year,    121. 

after  one  year  or  eighteen  months,  122. 

after  accounting,  122. 

statute  of,   134. 

See  Father,  Mother,  Cousin,  Etc. 

DISTRIBUTIVE   SHARE: 

payable  after  one  year,  121. 

payable  for  support  or  education,   120. 

recoverable  by  action,  123. 

DOWER: 

when  widow  entitled  to,  30. 
what  bars,  30. 

EDUCATION: 

payment  for,  120. 

EXECUTOR  OR  ADMINISTRATOR: 

entitled  to  possession  of  personal  estate,  118.     ' 

to  make   inventory,    118. 

to  account  after  one  year,  121,  122. 

to  account  after  eighteen  months,  122. 

liable  to  action  for  distributive  share  or  legacy,  123. 

EXPENSE  OF  ADMINISTRATION: 
to  be  first  paid,  20. 


INDEX  145 

FAMILY : 

entitled  to  use  of  certain  articles,  33. 
FATHER: 

takes  real  estate,  51. 
takes  personal  estate,  52. 
statute  of  descent  as  to,  125. 

distribution  as  to,   134. 
when  real  estate  came  on  the  part  of,  28,  126. 

who  takes.     See  Paternal  Uncles,  Aunts,  Cousins, 
Etc. 

FUNERAL  EXPENSES: 
to  be  first  paid,  20. 

FURNITURE : 

assets,  119,  n. 

GRANDCHILDREN: 

take  real  estate,  39. 

take  personal  estate,  40. 

of  cousins  take  real  estate,  88. 

take  personal  estate,  95. 
of  maternal  cousins  take  real  estate,  88. 
of  paternal  cousins  take  real  estate,  88. 
of  great-great-uncles  and  aunts  take  real  estate,  112. 

take  personal  estate,  112. 
of  great-uncles  and  aunts.     See  Second  Cousins. 

GRANDNEPHEWS  AND   GRANDNIECES: 

take  real  estate,  66. 
take  personal  estate,  68. 

GRANDNIECES:     See  Gbandnephews  and  Gbandnieces. 

GRANDPARENTS : 

take  personal  estate,  54. 
carmot  take  real  estate,  54. 

GREAT-AUNTS.     See  Great-Uncles  and  Gbeat-Aunts. 

GREAT-GRANDCHILDREN : 
take  real  estate,  41. 
take  personal  estate,  43. 

10 


146  INDEX. 

GREAT-GRAXDXEPHEWS  AND  NIECES : 

take  real  estate,  69. 
take  personal  estate,  72. 

GREAT-GRANDNIECES.       See     Great-Geaxdxephews     and 
Nieces. 

GREAT-GRANDPARENTS : 
take  personal   estate,   55. 
cannot  take  real  estate,  55. 

GREAT-GREAT-AUNTS.       See     Geeat-Great     Uncles     and 
Aunts. 

GREAT-GREAT-GRANDCHILDREN : 
take  real  estate,  45. 
take  personal  estate,  47. 

GREAT-GREAT-GRANDPARENTS : 
take  personal  estate,  56. 
cannot  take  real  estate,  56. 

GREAT-GREAT-UNCLES  AND  AUNTS: 
take  real  estate,   108. 
take  personal  estate,   109. 
children  of,  take  real  estate,  110. 

take  personal  estate,  110. 
grandchildren  of,  take  real  estate,  112. 

take  personal  estate,   112. 
and  their  descendants,  rights  of,  108. 

GREAT-UNCLES  AND  GREAT- AUNTS: 
take  real  estate,  97. 
take  personal  estate,  99. 
children  of,  take  real  estate,  100. 

take  personal  estate,   101. 
and  their  descendants,  rights  of,  97. 

HALF-BLOOD: 

rights  of  relatives  of,  16. 
statute  of  descent  as  to,  125. 
of  distribution  as  to,  134. 


INDEX.  147 


HEIRS: 

must  trace  relationship.  10. 
tenants  in  common,   132. 

See  Real  Estate. 

HOUSEHOLD  GOODS: 

set  apart  for  widow  and  minor  children,  33. 

HUSBAND: 

takes  personal  estate,  36. 
statute  of  distribution  as  to,   134. 
right  of  curtesy,  35. 
from  a  deceased,  28. 

ILLEGITIMATE  CHILDREN: 

rights  of,  16. 

statute  of  descent  as  to,  130. 

ILLEGITIMATE  INTESTATES: 

rights  of  relatives  of,  17. 

statute  of  descent  as  to  mother  of,  130. 

INQUIRER: 

must  trace  relationship,  10. 

INVENTORY: 

and  possession  of  personal  property,  118. 
of  assets  to  be  made,  118. 

LEGACY: 

payable  after  one  year,  121. 

for  support  or  education    120. 
recoverable  by  action,  123. 

LINEALS: 

who  are,  11. 

MARRIED  WOMEN: 

statute  of  distribution  as  to  estates  of,  134. 

MATERNAL  AUNTS.     See  Materxal  Uncles  and  Aunts. 


148  INDEX. 

MATERNAL  COUSINS: 
take  real  estate,  77. 
statute  of  descent  as  to^  125. 
children  of,  take  real  estate,   82. 
grandchildren  of,  take  real  estate,  88. 

MATERNAL  UNCLES  AND  AUNTS: 
take  real  estate,  74. 
statutes  of  descent  as  to,  125. 
descendants  of,  77,  88. 

See  Maternal  Cousins,  Etc. 

MATRIMONIAL  RELATIVE  TERMS,  13. 

MINOR  CHILDREN: 

entitled  to  use  of  certain  personal  property,  33. 

MORTGAGES: 

assets,  119,  n.  4. 

MOTHER: 

takes  real  estate,  52. 
takes  personal  estate,  53. 
statute  of  descent  as  to,  125. 

distribution  as  to,   134. 
when  real  estate  came  on  the  part  of,  28,  125. 
who   takes.     See   Matebnal   Uncles,   Aunts,    Cousins, 

Etc. 
if  of  an  illegitimate,  rights  of,  17. 

statute  of  descent  as  to,  125. 

NEPHEWS  AND  NIECES: 
take  real  estate,  60. 
take  personal  estate,  62. 

NEXT  OF  KIN: 

statute  of  distribution  as  to,  134. 

See  Personal  Estate. 

NIECES.     See  Nephews  and  Nieces. 

"  ON  THE  PART  OF :  " 
father  or  mother,  28. 
defined  by  statute,  125. 


INDEX. 


149 


PATERNAL  AUNTS.     See  Paternal  Uncles  and  Aunts. 

PATERNAL  COUSINS: 
take  real  estate,  77. 
statute  of  descent  as  to,  125. 
children  of,  take  real  estate,  82. 
grandchildren  of,  take  real  estate,  88. 

PATERNAL  UNCLES  AND  AUNTS: 
take  real  estate,  74. 
statute  of  descent  as  to,  125. 
children  of.    See  Paternal  Cousins,  Etc. 

PAYMENT: 

for  support  and  education,   120. 
after  one  year,  121. 
after  accounting,  122. 
compelled  by  action,   123. 

PERSONAL  ESTATE: 
what  is,  119,  n.  4. 
possession  of,  118. 
inventory  of,  118. 
brothers  and  sisters  take,  58. 
children  take,  39. 

of  cousins   take,   88. 

of  second  cousins  take,   103. 

of  great-uncles  and  aunts  take,  101. 

of  great-great-unclcs  and  aunts  take,  110. 
cousins  take,  81. 

second,   take,    103. 

third,  take,  15. 
father  takes,  52. 
grandchildren  take,  40. 

of  cousins  take,  95. 

of  great-great-uncles  and  aunts  take,  112. 
grandnephews  and  grandnieces  take,  68. 
grandparents  take,   54. 
great-grandchildren  take,  40. 
great -grandnephews  and  nieces  take,  72. 
great-grandparents  take,  55. 
gi'eat-great-grandchildren  take,  47. 
great-great -grandparents  take,  50. 


150  ixi>EX. 

PERSONAL  ESTATE  —  contimied. 

great-great-uncles  and  aunts  take,  109. 
great-uncles  and  aunts  take,  09. 

children  of,  take.  101. 
husband  takes,  36. 
mother  takes,  53. 
nephews  and  nieces  take,  62. 
second  cousins  take,  103. 

children  of,  take,  105. 
third  cousins  take,   115. 
uncles  and  aunts  take,  76. 

great-great,  take,  109. 
what  law  governs  succession,  9. 
widow  takes,  32. 

PERSONAL  PROPERTY: 

to  be  used  by  widow  and  minors,  33. 
See  Personal  Estate. 

POSSESSION: 

of  real  estate,   118. 

of  personal  estate,   118. 

and  inventory  of  personal  estate,   118. 

and  enjoyment  of  property  taken,   118. 

POSTHUMOUS  RELATIVES : 

rights  of,  15. 

statute  of  descent  as  to,  132. 
distribution   as   to,    137. 

post-testa:\iextary  children  : 

rights  of,   14. 

PROPERTY: 

amount  of,  ascertained,  20. 

to  pass  by  intestate  succession,  20. 

to  be  divided,  20. 

aflTected  by  making  a  will,  21. 

affected  by  revocation  of  will,  23. 

effect  of  failure  of  will,  24. 


INDEX,  151 

REAL  ESTATE: 

what  is,   12G. 

general  order  of  descent,  127. 
possession  and  enjoyment  of,   118. 
may  be  sold  to  pay  debts,  118. 
brothers  and  sisters  take,  57. 
children  take,  38. 

of  cousins  take,   82. 

of  second  cousins   take,    105. 

of  maternal  cousins  take,  82. 

of  paternal   cousins  take,   82. 

of  great-uncles  and  aunts  take,  100. 

of  great-great-uncles  and  aunts  take,   110. 
cousins  take,  77. 

children  of,  take,  82. 

second,  take,  102. 

children  of  second,  take,  105. 
descent,  common-law  rules  of,  98. 
father  takes,  51. 
grandchildren  take,  39. 
of  cousins  take,  88. 

of  great-great-uncles  and  aunts  take,  112. 
of  maternal  cousins  take,  88. 
of  paternal  cousins  take,  88. 
grandnephews  and  grandnieces  take,  66. 
grandparents  cannot  take,  54. 
great-grandchildren  take,  41. 
great-grandnephews  and  nieces  take,  69. 
great-grandparents  cannot  take,  55. 
great-great-grandchildren   take,    45. 
great-great-grandparents   cannot  take,  56. 
great-great-uncles  and  aunts  take,   108. 

children  of,  take,  110. 
great-uncles   and   avmts   take,   97. 

children  of,  take,   100. 
husband  takes,  35. 
maternal  cousins  take,  7/. 

children  of,  take,  82. 

grandchildren   of,   take,   88. 
maternal  uncles  and  aunts  take,  74. 
mother   takes,    52. 
nephews  and  nieces  take,  60. 
on  part  of  father  or  mother,  28. 


152  INDEX. 

REAL  ESTATE  —  continued. 
paternal  cousins  take,  77. 

children  of,  take,  82. 

grandchildren  of,  take,  88. 
paternal  uncles  and  aunts  take,  74. 
rules  of  descent  by  common  law,  98. 
second  cousins  take,  101. 

children  of,  take,   105. 
third  cousins  take,  114. 
uncles  and  aunts  take,  74. 

children  of  great-great,  take,  110. 

great-great,  take,  108. 
widow  takes,  30. 
what  law  governs  succession  to,  9. 

REAL  PROPERTY  LAW,  125. 

RECOVERY  BY  ACTION: 
after  one  year,  123. 

RELATIONS.     See  Relatives. 

RELATIONSHIP: 
ascertained,  12. 
rights  of  succession  depend  on,   10. 

RELATIVES : 
generally,  10. 
by  consanguinity,   10. 
by  affinity,   10. 
number  of,  11. 
who  are  lineals,  11. 
who  are  collaterals,   11. 
posthumous,   15. 
of  half  blood,  16. 
of  illegitimates,  17. 

RELATIVE   TERMS: 

table  of,  13. 
lineal,   13. 
collateral.  13. 
matrimonial,   13. 


INDEX.  153 


RENT: 

when  an  asset,  119,  n.  4. 
REPRESENTATION: 

among  collaterals,  135,  136,  137. 
REVISED   STATUTES: 

as  to  descent,   125. 

as  to  distribution,   134. 

RULES  OF  DESCENT: 

by  common  law,  98. 
SECOND  COUSINS: 

take  real  estate,  102. 

take  personal  estate,   103. 

children  of,  take  real  estate,  105. 
take  personal  estate,   105. 

SISTERS.    See  Beothers  and  Sisters. 

STATUTE  OF  DESCENT,   125. 

STATUTE  OF  DISTRIBUTION,  134. 

SUCCESSION: 

what  law  governs,  9. 

tax,  29. 

SUPPORT: 

payment  for,  120. 
TABLE  OF  RELATIVE  TERMS,  13. 
TAX,  SUCCESSION,  29. 
TENANTS  IN  COMMON: 

heirs  are,  132. 
THIRD  COUSINS: 

take  real  estate,  114. 

take  personal  estate,  115. 

UNCLES  AND  AUNTS : 
take  real  estate,   74. 
take  personal   estate,   76. 
statute  of  descent  as  to,  125. 
distribution  as  to,   134. 


154  INDEX. 

UNCLES  AND  AUNTS  —  continued. 

and  their  descendants,  rights  of,  74. 

statute  of  descent  as  to,  125. 
children  of.     See  Nephews  and  Pieces. 
of  great,  take  real  estate,  100. 
take  personal  estate,   102. 
of  great-great,  take  real  estate,   110. 
take   personal   estate,    110. 
grandchildren  of  great-great,  take  real   estate,   112. 

take  perscvnal   estate,    112. 
great,  take  real  estate,  97. 

take  personal  estate,  99. 
great-great,  take  real  estate,  108. 
take  personal  estate,  109. 
children  of,  take  real  estate,  110. 
take  personal  estate,  110. 
WIDOW : 

takes  dower,  30. 

takes  personal  estate,  32. 

takes  property  valued  at  $1,000,  32,  134. 

statute  of  distribution  as  to,  134. 

right  of,  to  sustenance,  32. 

right  of,  to  possession  of  various  articles  for  use  of  minor 

children,  32. 
quarantine  of,  32. 
if  an  illegitimate,  rights  of,  17. 

WIFE: 

from  a  deceased,  28. 

WILL: 

did  deceased  make  a,  21. 

does  it  fail  to  take  effect,  24. 

has  it  been  revoked,  23. 

fraudulently  destroyed,  may  be  proved,  20. 

lost,  may  be  proved,  20. 

revocation  as  a  whole,  23. 

in  part,  24. 
suggestions  of  failure  to  make,  21,  22. 

as  to  revocation,  23. 

of  failure  to  take  effect,  24. 
validity  and  effect  to  be  determined,  20. 


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